Was the Executive Order on the travel ban legal? Well…
The Trump administration believes that the ban is lawful based upon provisions provided by a 1952 immigration law, which (long story short) established a national origins quota system that was essentially biased against the Eastern Hemisphere. That law established immigration preferences towards skilled laborers and those with family in the United States that still exists to this day. Considering Trump’s ban only affects the 7 countries that were identified by the Obama administration to be areas of concern (and thus subjected to a different visa process for security reasons), this makes no real sense. Remember, the Obama administration changed the visa process for immigrants from these countries; it did not ban travelers or green card holders (legal, permanent residents), nor did it ban visa holders from these countries.
The 1965 amendments was designed to supersede the 1952 law. It eliminated the national origins quota system and introduced quotas for Latin American countries for the first time. And this is where the legality of the ban gets murky.
Some conservatives, such as writers at Town Hall and National Review argue that the ban is legal, citing executive branch supremacy over congressional power — despite neither producing a single case where the executive branch ignored Congress to exclude immigrants. They based their argument in the belief that the president can limit immigration on the basis of national security. They cited the Obama administration’s changes to the Visa Waiver Program — which was not a ban, but changed the application and verification process. Once again, this view makes no fucking sense.
Let’s make something very clear: the Obama Visa Waiver Program changes to affect immigrants from those 7 countries (subjecting them to interviews before being given a visa) is wholly discriminatory.
Other conservatives and libertarians, such as the Cato Institute, argued that the ban was illegal because the President cannot arbitrarily change immigration law without the consent of Congress, nor pick and choose with immigration statues to enforce without the consent of Congress. This is why Obama’s executive order on trying to prevent the deportation of 4 million illegal immigrants last year, many of them DREAMers, was shot down in federal court.
And no…Jimmy Carter’s Iranian ban cannot be used as an example. It was not a national security provision; it was part of a sanctions package at the height of the Iranian Hostage Crisis as a ploy to get Iran to free the hostages. Visa were suspended, but as it was targeting students and tourists, immigration was still permitted through 1980.
Donald Trump literally has no precedent in justifying this restriction and the legality is dubious at best. Comments made by the administration illustrated discriminatory intent. This was cited by former deputy Attorney General Sally Yates as her reasoning as to why she needed to essentially convinced of its legality before defending it in court (Attorney Generals are by no means required to defend anything the executive branch does in court, but is usually considered dutiful to do so as a client-attorney obligation so to speak).
The bottom line: this is what happens when you have a power structure (Trump/Miller/Bannon) that has no experience in government allowed to make decisions for the most powerful country on earth. My grave concern is what will happen if Trump is able to make two appointees to the Supreme Court and continues to sully the independence of the Department of Justice.