On Sunday, two federal judges in Massachusetts issued a ruling that temporarily stayed the enforcement of President Donald Trump’s immigration ban for travelers flying into Logan Airport. From all accounts, the Trump administration has ignored that ruling. Its argument: The government is not barring entry “solely on the basis of the Executive Order,” as the ruling forbids but on the basis of the State Department having quietly revoked those visas from the countries affected by the executive order, “in implementation” of that order.
Pratheepan Gulasekaram is an associate professor and expert in immigration law at Santa Clara University School of Law. Slate asked him to help us understand whether Trump was now officially violating a court order. This interview has been edited and condensed for clarity.
Jeremy Stahl: The administration is claiming that visas have been revoked and that’s why it’s not letting people in, not because of the executive order. I’m just struggling to get my head around all of it. Any clarity?
Pratheepan Gulasekaram: The administration for some weeks now—even before the executive order was issued—had already begun revoking visas from people. There’s no doubt that the Boston District Court went essentially as broad as you could. It looked like it went after legal permanent residents, nonimmigrant visas, individuals from the seven countries, and the refugee program as well, and it said basically we’re stopping all of that. We’re returning to what the statutes allowed before any of these executive orders were issued, and in fact [it] directs the administration to notify airlines, at least the ones flying into Logan, of this order that people are not to be restrained that way.
The judge in Massachusetts seemed to very clearly state that immigrant visa holders had the right to enter the country and the administration had to tell airports that they had the right to enter the country.
If you look at the Boston order—you’re right that it is very explicit. It says that Customs and Border Protection shall notify airlines about flights arriving at Logan Airport of this order. But in general I take your meaning. The judge did order—it covers all entrant categories.
So the administration is saying, We’ve stripped away these visas in the dead of night and therefore, executive order aside, people from these seven countries are not going to be able to enter the United States. How do you think that is going to—that doesn’t sound like it’s going to hold up. I don’t understand how that could conceivably be an argument. Please explain!
I hear and understand your confusion and wondering about it. I am too. I think the question that may be helpful is, where’s the authority on which [the administration] is revoking these visas? Is there some statute they’re using? Is there some executive order? It’s not clear on what authority they’re doing that, and as you said, they are in fact doing it.
On the other hand, the immigration law does give the president, the executive, significant control over admission provisions, and there’s an entire section—the same section that the president invoked when he wrote the executive order in the first place—that says the president may, if he thinks it’s in the interests of the country, essentially ban the entry of groups of people into the United States. It’s not clear when he’s revoking those visas that he’s acting on that authority. He certainly did not say it in his executive orders. That certainly creates a transparency problem, and it allows him to essentially do something with subterfuge and hide it from the public in a way that these executive orders, and the real effect that they have when people land, could not be hidden from the public.
Is the executive essentially doing things that are circumventing the public’s eye to watch him, the public’s eye to be able to monitor whether he’s complying with the Immigration and Nationality Act, the statutes that Congress has passed and then with the Constitution itself? And that certainly seems that’s what the executive is doing here.
It does seem that he’s found a way to circumvent answering to the Constitution itself. Because the constitutional question itself is more broadly whether this is in violation of so many different parts of the Constitution: Due Process Clause, Equal Protection Clause, First Amendment Establishment Clause. So …
The only thing that I would say as someone who works in this area is that while I personally would make the argument and support the argument that the Constitution clearly does apply and every single section, provision, and clause that you just cited [has been violated], the fact is that that is an open question at least in the courts. And certainly the position that the government, the executive, is going to take here is that whatever might apply and whatever you might think of these clauses in the domestic context or the mainstream context, the Constitution does not speak with the same voice when [it] comes to immigration decisions, at least over decisions over entry and exit.
I understand that it’s an open question, but from my understanding of what’s been decided at these two federal courts in Los Angeles and Boston, these federal judges, ordering immediate injunctions: It does not seem like an open question. They’re saying the plaintiffs are likely to prove their claims and irreparable harm, and therefore we’re putting a stop to this right now. And yet the administration is continuing. It just seems to me that quite obviously they’re violating these court orders, and I’m looking for a way that is plausible to me that they’re not.
If you look at the Boston order and the L.A. order, they say this applies to “holders of valid visas.” So you could be worried about two problems. The first problem is a simple ignoring of the order: That is somebody lands, they have a valid immigrant or nonimmigrant visa, they present it to a Customs and Border Protection officer, and the officer applies the executive order and just disregards the court order.
That problem might be dealt with in a number of ways including shining a light on it, having people really broadcast what’s happening, and then having judges hold those individual officers in contempt of court including possible fines and jail time for that type of action, and then possibly investigating whether their actions were done pursuant to orders that came from higher up in the agency.
The other type of problem, and the one that you started talking about, is that the administration in a sense is circumventing the order. Not violating its technical terms. That is, they’re not taking away somebody—they’re not stopping anybody from entering or detaining them when they have a valid immigrant visa but essentially saying that the visa was not valid in the first place. Taking it away. Saying we have the authority to issue it, we have the authority to take it away. Do I think that is clearly still a violation of this injunction? Yes. It certainly violates the spirit of it and attempts to accomplish exactly what the administration was attempting to do with the executive order in a different way.
That’s my issue, that it uses the precise terms of the executive order itself—there’s no separate classification for who does and doesn’t get to keep the visa, aside from what’s in the executive order. That’s what they’re instructing airlines, in blatant disobedience of the court order. They’re instructing airports along the lines of the executive order and yet saying, It’s not the order, it’s the revocations. That seems to me blatantly—it’s not even a clever workaround!
It’s not. But here’s the thing, there’s so many moving parts here and so much confusion and a lot of agency actors. When they issue orders like this that [are] plainly in parts unlawful, and in other parts truly confusing, and then attempt to walk it back, and you have several court orders, I mean you have a massive bureaucracy across all sorts of agencies. These sorts of things are bound to happen, and you’re seeing some of those effects now. Some of this might just be pure confusion. Do I comply with the court order? Does the court order in Boston apply to me? Do I comply with what the president has said? It’s not clear, by the way, that any court order in the United States necessarily binds State Department actors that are in foreign countries. I can imagine many kinds of scenarios where you have agency actors, especially low-level agency actors, being truly confused by it, and for others ideologically just feeling like they want to skirt the court order to the fullest extent possible and this is how they’re going to do it. Fundamentally, this comes down to the responsibility of the executive. The executive has to have control over his underlings, over his Cabinet members, and then get them in line. Otherwise the president and everybody down the line is potentially violating the court order and can be held in contempt.
That’s what I’m saying! The Boston court order says that Customs and Border Protection has to “notify airlines that have flights arriving at Logan Airport of this Order and the fact that individuals on these flights will not be detained or returned based solely on the basis of the Executive Order.” On what other basis are they revoking these visas?
One thing: If you land somebody whose credentials were not correct and problematic and they’re being sent back, you, the airlines, bear the cost of them now being sent back to wherever they are. That order, as you just read it, would mean that if you’re an airline, you should now disregard the order and if somebody has a valid visa let them on the plane. That might happen, but again what if the State Department official, the consular officer, who has issued the visa to somebody who’s about to get on a flight in Djibouti or wherever they are, decides, You know what, I issued that visa but in fact we are revoking the issuance of that visa. You may have some piece of paper or whatever it is, but is no longer valid. We are taking that away. I think that’s where some of the difficulties actually come in here. Because that action is not controlled by the executive order, it’s not controlled by telling an airline whether or not they can accept it or not. It is literally using the machinery of the State Department, the consular offices in these foreign countries to essentially just revoke a visa.
But they haven’t said: Don’t accept people who have revoked visas. What they have said is: Don’t accept people from these seven countries under the exact specifications of the executive order. This is what they’re telling airlines!
I’m only laughing because I completely—I understand what you’re saying, and I’m persuaded by what you’re saying. I still think though that if you’re the Trump administration, you’re going to try to exploit every single way of essentially defying this order, without having to defy the actual literal words of this order. And I think that this is one—if you’re looking for daylight here, that is the daylight. If the order says you can’t deny a “valid visa” to somebody coming from one of these countries, then fine, make the visa invalid before they get in, then you’re no longer denying that visa.
On what basis? On the basis of the executive order!
On any basis. That’s my point. So if on any basis, really on any basis. You’re focused solely on the executive order, but there’s any number of bases along which the state department for any number of reasons might decide to revoke that visa. I’m not suggesting that that’s a valid action of the United States government. And it’s certainly not normal. Under normal circumstances once they’ve gone through those checks and they’ve gotten that visa, they’re more than likely going to get to the United States. Maybe this will help: From the perspective of immigration law, nothing is ever assured. Not for any visa holder, regardless of this executive order, until the Customs and Border official at the port of entry allows them to come into the United States.
Let me be clear: [I’m] attempting to explain to you what the ambiguity is that they are attempting to exploit. I don’t think it’s a very successful attempt. In that sense, I completely agree with you. I think that it’s a nonsense way of doing it. I’m just trying to resurrect what that argument is if you’re asking me what I’d be trying to argue if I was the administration.
I appreciate it. That’s why I called you! I appreciate your best efforts to argue that it could potentially be seen as not a nonsense thing.
I think that this has become extremely embarrassing for the administration. I also think that they’re committed to do this in some way, shape, or form. They have line officers who are notoriously difficult to control. If you have a sufficiently motivated field agent, Border Patrol, whatever it is, by ideology, this is the ambiguity, this is the daylight that they are going to attempt to exploit. Unfortunately in immigration agency context, that ambiguity can sometimes be allowed because of the unique nature of immigration law in the eyes of some courts with regards to the constitutional limitations that we were discussing before.
This is absolutely maddening and depressing stuff. I’m sorry to have gotten worked up at you. I appreciate your help.
Really, all I was trying to do was try to provide you with what the counterargument was, but not attempting to convince you that that counterargument was persuasive in any way. I don’t believe it to be persuasive. If you’re looking at this type of crisis, where the executive is essentially just ignoring what a court order does or trying to figure out devious horrible ways around it to screw over people—I mean, has this happened in the past? It rarely happens because of the way in which we regard court orders. And we hope that other branches comply with them. States attempted to ignore Brown v. Board of Education. And that led to a real crisis. You had to have U.S. military face down state militias in order to allow kids to go to school. So yeah, these things are awful. And it doesn’t help when it’s a co-equal branch of government raising the stakes of brinksmanship to the point where you don’t know what’s going to happen after that.
When you have an executive that is acting the way that Donald Trump is acting and not controlling what his officers are doing in noncomplying, that’s a constitutional—that’s leading to a constitutional crisis.