A flurry of tweets from President Trump thrust the travel ban hashtag back into the limelight last week. This time, however, he took aim at his own Department of Justice (DOJ) for failing to defend the first version of the travel ban and — worse, in his opinion — the second, “watered-down” version of his executive order. Meanwhile, the U.S. has quietly been continuing the refugee program and is about to hit the 50,000 refugee ceiling — down from 110,000 — President Trump designated in both travel bans.
Monday’s decision from the Ninth Circuit preserved the ceiling at 110,000.
Both executive orders limited the refugee admissions cap to 50,000. However, the first order, issued January 27, faced such stiff legal hurdles that it was revoked entirely and replaced by the second travel ban issued a few weeks later.
On March 6, President Trump signed the second travel ban executive order. Section 6(a) of this order called for a 120-day suspension of the United States Refugee Admissions Program (USRAP), and Section 6(b) reduced the refugee resettlement limit to 50,000. Unlike the first executive order, the revised version does not expressly refer to an individual’s status as a “religious minority” or refer to any particular religion; nor does it include a Syrian-specific ban on refugees.
Primed and ready, refugee and immigrant advocates immediately filed lawsuits. But the major focus of those challenges was on the allegedly more egregious violation laid out in Section 2 of the executive order that called for the temporary suspension of entry of nationals of six majority Muslim countries.
The District Court for the District of Hawaii issued a temporary restraining order (TRO) against the second executive order on March 15, 2017 in Hawaii v. Trump. That TRO enjoined — prohibited — the enforcement and implementation of both Sections 2 and 6 of the executive order nationwide. In the order granting the TRO, plaintiffs opined that Section 6 exceeds the president’s authority and is motivated by anti-Muslim animus.
Simultaneously, the District Court for the District of Maryland also issued a TRO against the second executive order in International Refugee Assistance Project v. Trump. That TRO enjoined the enforcement and implementation of only Section 2(c) of the executive order nationwide. Although the plaintiffs later filed a notice of intent to file a motion for a preliminary injunction against Section 6, the court denied the motion because the decision in Hawai’i v. Trump already applied nationwide.
Not surprisingly, the DOJ challenged both district court decisions in federal court. About two weeks ago, the Fourth Circuit Court of Appeals issued an opinion upholding the TRO from the District of Maryland enjoining only Section 2(c) of the executive order.
The question about what the refugee cap this year could be has now been answered by the Ninth Circuit. The opinion upheld the district court’s nationwide injunction against Section 6 of the travel ban. So the refugee resettlement level stands at 110,000.
In each decision so far, the courts heavily weighed the statements of President Trump from the campaign trail to his time in office, making his most recent tweets particularly baffling. By refusing to walk back his controversial comments over the course of the past few months, the president fuels the fire that his travel ban is aimed not at national security generally, but, rather, at Muslims specifically, as plaintiffs in each suit maintained.
Further undermining the president’s desire to quash refugee resettlement numbers, the State Department recently lifted a quota on weekly refugee arrivals. As of June 6th, 46,818 refugees have been resettled in the U.S. in FY17. In fact, 194 refugees arrived in the U.S. on June 5th alone. Advocates have been operating under the assumption that the limit remains 110,000 and are expecting up to 70,000 refugee admissions by the end of the fiscal year.
The importance of those extra 20 to 25,000 refugee entrants cannot be understated. The close of the G7 summit in Taormina, Sicily this week marked a significant failure of global leaders. More specifically, they failed both to preserve formally the rights of increasing refugee populations in the region and to determine how and where migrants seeking refuge or asylum can turn as neighboring countries struggle under the weight of unparalleled humanitarian need.
Once an issue that enjoyed overwhelming support from Democrats and Republicans alike, refugee policy is now vulnerable to political rhetoric and backlash wholly unsupported by evidence in the United States. At a time when we need accountability in refugee policy and firm fiscal and social commitments from world leaders, the president remains dead set on pulling back from our position as global frontrunner of humanitarian aid. The Ninth Circuit has dealt another blow to this aim, and it may now be in the hands of the Supreme Court to determine the future of refugee policy, executive authority, and — by extension — the U.S.’s standing as a humanitarian global leader.
Kristie de Peña is the immigration counsel at the Niskanen Center. Melanie Huettman is an intern at the Niskanen Center and a student at the University of Iowa College of Law.