President Trump’s commitment to free-market economics, and minimalised regulation, is evident, not least from executive orders to streamline environmental approvals of infrastructure projects, on core principles for financial sector regulation, and on reducing regulation and its cost. However, the President’s 27 January Order ‘Protecting the Nation from Foreign Terrorist Entry into the United States’ contradicts that economic approach, violating the rule of law, and free-market norms.
The Order imposed:
- a 90-day prohibition on entry by persons ‘from’ designated countries of Iraq, Iran, Libya, Syria, Yemen, Somalia or Sudan (section 3(c)) which could be extended indefinitely, and to other countries (section 3(e)–(f));
- a 120-day suspension of the US Refugee Admissions Programme (‘USRAP’) (section 5(a)); and
- an indefinite stop on admission of Syrian refugees (section 5(c)).
The designated countries have majority Muslim populations. On any resumption of refugee immigration, the Order directs religious minorities (non-Muslims) should be prioritised (section 5(b)).
Chaotic rollout causing human misery was, according to reports, ubiquitous (see also Washington v Trump: ACLU Amicus Brief). Compatibility with international law is questionable (Hathaway 'Executive (Dis)order and Refugees—The Trump Policy’s Blindness to International Law'). A request for intervention is before the Inter American Commission on Human Rights. Numerous legal claims including at least one class action are pending. In State of Washington et al v Donald J Trump et al a nationwide temporary restraining order (‘TRO’) was issued on 3rd February (upheld on appeal), pending substantive judgment. That case will likely progress to the Supreme Court. Supporting plaintiffs Washington and Minnesota states, amicus briefs have been filed by 17 states, the ACLU (American Civil Liberties Union) non-profit organisations, academics and university legal clinics, refugee organisations, 97 technology companies, national security experts, and others.
On multiple grounds, the Order undermines rule of law norms associated with free-market economics. ‘Formal’ rule of law theories posit that procedural norms underpin ‘rule of law’ governance and political freedom; substantive approaches also require protection of some liberty rights (Craig 1997). Legal stability and certainty support political and economic freedom central to free-market economic models of Friedman and the Chicago School of Economics (see also Ebenstein L. (2014)). Hayek’s concept of law broadly follows ‘formal’ rule of law ideas: general, equal, clear, certain, prospective laws, limited and rationally justified, with separation of powers, executive accountability, judicial independence, and due process, are necessary conditions for individual and economic freedom (Hayek ‘The Constitution of Liberty’). Even libertarian theories and free-market ideologies invoke classical liberal ideals that laws should be general, equal, clear, certain, and prospective, with controls on arbitrary state power (see, for example, Boaz ‘Key Concepts of Libertarianism’; Ebeling ‘Free Markets, the Rule of Law, and Classical Liberalism’; and Nozick ‘Anarchy, the State and Utopia’).
Echoing formal rule of law standards, the legal cases claim, amongst other things, the Order is not rationally justified, discriminates contrary to immigration law (8 U.S. Code § 1152) and the Equal Protection Clause, and violates due process rights (see, for example, International Refugee Assistance Project et al v Trump et al).
A state of emergency might justify precipitous immigration restrictions, but national security justifications have been questioned. The bi-partisan former officials and experts’ amicus brief asserts the Order threatens national security, contrary to its stated aims. The judge at the first TRO hearing was skeptical of the administration’s national security claims, observing there was no evidence that any citizens from the designated countries had been arrested since 9/11.
Technically, the Order is prospective, not retrospective, since visas and other pre-clearance documents do not constitute a legal right of entry. However, the precipitous introduction and immediate, chaotic enforcement of the Order epitomized uncertainty, instability, and unfairness. Immediately following promulgation, multiple deportations and detentions of visa holders and refugees previously cleared for entry were reported, prompting immediate judicial intervention (for example, Judge Donnelly’s interim ruling on 28 January in Darweesh et al v Trump et al). The Order has had practical, if not legal, effects of retroactivity, sabotaging or interrupting investment and business planning. The amicus brief of the 97 companies asserts the Order harms competitiveness. ‘Sudden changes without notice’, and lack of clarity, ‘deprives employees and businesses of the predictability they require’ (p 6), undermining ‘immigrants’ and businesses’ ability to make plans, conduct business, or manage any affairs involving non-citizens’ (p 19). An open letter from leading biotech companies says uncertainty and fear caused by the Order means ‘the new administration has compromised years of investment’ in the sector, with ‘negative economic consequences’ for the economy.
The class of persons within section 3(c), suspending ‘immigrant and nonimmigrant entry into the United States of aliens from’ the designated countries, is impossibly vague. US citizens should not be affected since it targets ‘aliens’, defined in 8 U.S. Code § 1101 (a)(3). Apparently, it applies to all non-US citizens or nationals, including resident aliens (‘immigrants’) and non-resident aliens (‘nonimmigrants’) (8 U.S. Code § 1101(a)(15)) ‘from’ the countries, but ‘from’ is not defined. Narrowly construed, it could mean travelling ‘from’ the designated countries, directly, or via transit hubs. Or it could, as the 97 companies’ amicus filing suggests, revive a discriminatory ‘national origin system’ of immigration, abolished in 1965 (pp 15–16). On the other hand, section 3(c) is neither restricted to designated country ‘nationals’, as defined (8 U.S. Code § 1101(a)(21)), nor ‘foreign-born’, an undefined term used in the Order’s stated purposes (section 1).
It might include persons with automatic or acquired dual nationality rights, for example, by descent, even if they have never visited or resided in the designated countries. Citizenship by descent is determined under laws in the designated countries, admitting further inequalities and uncertainty.
Notwithstanding the general prohibitions, immigrants might be admitted on a ‘case-by-case basis […] in the national interest’ (section 3(g)). This is inherently arbitrary, unclear and unfair because relevant criteria and procedures are not specified.
Seeking to reassure UK dual nationals, a UK Foreign Office statement of 1 February claims the Order ‘only applies to individuals travelling from’ the designated countries, and if travelling to the US from elsewhere it ‘does not apply to you […] regardless of your nationality or […] place of birth’. It claims the Order does not apply to UK nationals ‘travelling from one of those countries to the US […] even if you were born in one of those countries’ or to a ‘dual citizen of one of those countries travelling to the US from OUTSIDE those countries’ and it also claims that ‘the only dual nationals who might have extra checks are those coming from one of the 7 countries themselves – for example a UK-Libya dual national coming from Libya to the US’.
The statement could reflect a very narrow interpretation of section 3(c), or a general exemption agreed by the US administration under section 3(g). But it has no legal force and could be erroneous: exacerbating confusion, the US Embassy reportedly issued, then withdrew, a contradictory statement that UK dual nationals are within section 3(c).
Finally, the Order contemplates extending restrictions, with additional country designations and entry prohibitions (section 3(e)–(f)), rendering near impossible any business planning or recruitment involving employees ‘from’ the designated countries.
Many other aspects of the Order are ambiguous and discriminatory. The strength of democratic institutions, and capacity of public officials and private citizens to defend constitutional values, the rule of law, and individual and economic freedoms, is being vigorously tested, as is President Trump’s own commitment to a low regulation, entrepreneurial, free market economy.
Rebecca Mooney is an Associate Fellow at the Centre for Socio-Legal Studies, Oxford, and a solicitor.