international law update Volume 23, April–June 2017
© 2017 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
In challenges to Executive Order No.
13780, Protecting the Nation from
Foreign Terrorist Entry into the United
States, U.S. Supreme Court grants writ
of certiorari
ese cases involve challenges to Executive
Order No. 13780, Protecting the Nation from
Foreign Terrorist Entry Into the United States.
Respondents challenged the order in two separate
lawsuits. Among other directives, the order
suspended entry of foreign nationals from seven
countries identified as presenting heightened
terrorism risks for 90 days. Executive officials
were instructed to review the adequacy of current
practices relating to visa adjudications during this
90-day period. EO-1 also modified refugee policy,
suspending the United States Refugee Admissions
Program (USRAP) for 120 days and reducing the
number of refugees eligible to be admitted to the
United States during fiscal year 2017. EO-1 was
immediately challenged in court. Respondents
obtained preliminary injunctions barring
enforcement of several of its provisions, including
the 90-day suspension of entry. e injunctions
were upheld in large measure by the Courts of
Rather than continue to litigate EO-1, the
Government announced that it would revoke the
order and issue a new one. A second order followed
on March 6, 2017. EO-2 describes “conditions
in six of the ... countries” as to which EO-1 had
suspended entry, stating that these conditions
“demonstrate [that] nationals [of those countries]
continue to present heightened risks to the security
of the United States,” § 1(e), and that “some of
those who have entered the United States through
our immigration system have proved to be threats
to our national security,” § 1(h). EO-2 sets out a
series of directives patterned on those found in
EO-1. Several are relevant here and includes EO-2
directing the Secretary of Homeland Security to
conduct a global review to determine whether
foreign governments provide adequate information
about nationals applying for United States visas.
Second, EO-2 directs that entry of nationals from
six of the seven countries designated in EO-1 be
“suspended for 90 days from the effective date”
of the order. ird, EO-2 suspends “decisions
on applications for refugee status” and “travel of
refugees into the United States under the USRAP”
for 120 days following its effective date. Fourth
Citing the President’s determination that “the entry
of more than 50,000 refugees in fiscal year 2017
would be detrimental to the interests of the United
States,”. Finally, § 14 of EO-2 establishes the order’s
effective date: March 16, 2017.
Respondents in these cases filed separate
lawsuits challenging EO-2. As relevant, they argued
that the order violates the Establishment Clause of
the First Amendment because it was motivated not
by concerns pertaining to national security, but by
animus toward Islam. In No. 16-1436, a Federal
District Court concluded that respondents were
likely to succeed on their Establishment Clause
claim with respect to § 2(c) of EO-2- the provision
temporarily suspending entry from six countries -
and entered a nationwide preliminary injunction
barring the Government from enforcing § 2(c)
against any foreign national seeking entry to the
United States. ese orders, entered before EO-2
went into effect, prevented the Government from
initiating enforcement of the challenged provisions.
e Government filed appeals in both cases. e
Court of Appeals for the Fourth Circuit ruled first.
e majority determined that respondent John Doe
# 1, a lawful permanent resident whose Iranian wife
is seeking entry to the United States, was likely to
succeed on the merits of his Establishment Clause
claim. e majority concluded that the primary
purpose of § 2(c) was religious, in violation of the
First Amendment.
On June 1, the Government filed a petition
for certiorari seeking review of the Fourth Circuit’s
decision. It also filed applications seeking stays of

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