Statutory authorization and related prohibitions . Key provisions of executive orders 13769 and 13780 cite to paragraph (f) of
Title 8 of the United States Code § 1182, which discusses inadmissible aliens. Paragraph (f) states: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. The act that underlies this, known as the
Immigration and Nationality Act of 1952 (a.k.a. the McCarran–Walter Act), was amended by the
Immigration and Nationality Act of 1965 (a.k.a. the Hart−Celler Act), which included a provision stating No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence. The language in the INA of 1965 is among the reasons District of Maryland
Judge Chuang issued a temporary restraining order blocking Section 2(c) of Executive Order 13780.
Restrictions by the Obama administration In 1986, the
Visa Waiver Program was initiated by President
Ronald Reagan, allowing alien nationals of select countries to travel to the United States for up to 90 days without a visa, in return for reciprocal treatment of U.S. nationals. By 2016, the program had been extended to 38 countries. In 2015, Congress passed a
Consolidated Appropriations Act to fund the government, and Obama signed the bill into law.
The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which was previously passed by the
House of Representatives as H.R. 158, was incorporated into the Consolidated Appropriations Act as Division O, Title II, Section 203. The Trump administration's executive order relied on H.R. 158, as enacted. The Visa Waiver Program Improvement and Terrorist Travel Prevention Act originally affected four countries: Iraq, Syria, and countries on the
State Sponsors of Terrorism list (Iran and Sudan). Foreigners who were nationals of those countries, or who had visited those countries since 2011, were required to obtain a visa to enter the United States, even if they were nationals or dual-nationals of the 38 countries participating in the Visa Waiver Program. Libya, Yemen, and Somalia were added later as "countries of concern" by
Secretary of Homeland Security Jeh Johnson during the Obama administration. The executive order refers to these countries as "countries designated pursuant to Division O, Title II, Section 203 of the 2016 consolidated Appropriations Act". Prior to this, in 2011, additional background checks were imposed on the nationals of Iraq. Trump's
press secretary Sean Spicer cited these existing restrictions as evidence that the executive order was based on outstanding policies saying that the seven targeted countries were "put (...) first and foremost" by the Obama administration.
Trump campaign and administration statements before the order's signing Donald Trump became the U.S. president on January 20, 2017. He has long claimed that
terrorists are using the U.S. refugee resettlement program to enter the country. As a candidate Trump's "Contract with the American Voter" pledged to suspend immigration from "terror-prone regions". Trump-administration officials then described the executive order as fulfilling this campaign promise. Speaking of Trump's agenda as implemented through executive orders and the judicial appointment process, White House chief strategist
Steve Bannon stated: "If you want to see the Trump agenda it's very simple. It was all in the [campaign] speeches. He's laid out an agenda with those speeches, with the promises he made, and [my and Reince Priebus'] job every day is to just to execute on that. He's maniacally focused on that." During his initial election campaign Trump had proposed a temporary, conditional, and "total and complete" ban on
Muslims entering the United States. His proposal was met by opposition by U.S. politicians including
Mike Pence and
James Mattis. , an advisor to Trump campaign on immigration, said the proposal was a statement of purpose to be supplied with details in subsequent months. On July 15, Pence, who as governor of Indiana attempted to suspend settlement of Syrian refugees to the state but was prevented from doing so by the courts, said that decision was based on the fall 2015 FBI assessment that there is risk associated with bringing in refugees. Pence cited the
infiltration of Iraqi refugees in Bowling Green Kentucky who were arrested in 2011 for attempting to provide weapons to ISIS and Obama's suspension of the Iraqi refugee program in response as precedent for a U.S. President's "temporarily suspend[ing] immigration from countries where terrorist influence and impact represents a threat to the United States". On July 17, Trump (with Pence) participated in an interview on
60 Minutes that sought to clarify whether Trump's position on a Muslim ban had changed; when asked whether he had changed position on the Muslim ban, he said: "—no, I—Call it whatever you want. We'll call it territories, OK?" Trump's response would later be interpreted by
Judge Brinkema of the
U.S. District Court for the Eastern District of Virginia as acknowledging "the conceptual link between a Muslim ban and the [executive order]" in her ruling finding the executive order likely violates the
Establishment Clause of the
U.S. Constitution. In a speech on August 4 to a Maine audience Trump called for stopping the practice of admitting refugees from among the most dangerous places in the world; Trump specifically opposed Somali immigration to Minnesota and Maine, describing the Somali refugee program, which has resettled tens of thousands of refugees in the U.S., as creating "a rich pool of potential recruiting targets for Islamic terror groups". In Minnesota 10 men of Somali or
Oromo family backgrounds were charged with conspiring to travel to the Middle East to join
ISIS and 20 young men traveled to Somalia to join a terror group in 2007. Trump went on to list alleged terrorist plots by immigrants from Somalia, Yemen, Iraq, and Syria, along with incidents of alleged terrorism plots or acts by immigrants from countries not among the seven specified by the eventual executive order such as
Pakistan,
Afghanistan, the
Philippines,
Uzbekistan, and
Morocco.) as justification for his proposals for increased ideological testing and a temporary ban on immigration from countries with a history of terrorism; on this point, the
Los Angeles Times analysis observed Trump "failed to mention that a number of the attackers were U.S. citizens, or had come to the U.S. as children". (The same analysis also acknowledged an act of Congress eventually cited to in the executive order was probably what Trump would attempt to use in implementing such proposals.) In the speech, Trump vowed to task the departments of State and Homeland Security to identify regions hostile to the United States such that the additional screening was justified to identify those who pose a threat. In a speech on August 31 Trump vowed to "suspend the issuance of visas" to "places like Syria and Libya". On September 4
vice presidential candidate Mike Pence defended the Trump–Pence ticket's plan to suspend immigration from countries or regions of the world with a history of terrorism on
Meet the Press. He gave Syria as an example of such a country or region: "Donald Trump and I believe that we should suspend the Syrian refugee program" because, Pence said, Syria was a region of the world that was "imploding into civil war" and had "been compromised by terrorism". In late November following the
Ohio State attack, President-elect Trump claimed the attacker was a "Somali refugee who should not have been in" the U.S. In early December he said the attack showed immigration security is national security when stating goals for his administration. The attacker injured 11 before he was killed by police. The attacker was a Somali-born refugee who spent seven years in Pakistan, the country from which he immigrated to the U.S. with his family on a refugee visa. The attacker was a legal permanent resident living in the U.S. reportedly inspired by but not in direct contact with ISIS. In an interview broadcast the day he would sign the order President Trump told the
Christian Broadcasting Network (CBN) that
Christian refugees would be given priority in terms of refugee status in the United States after saying that Syrian Christians were "horribly treated" by his predecessor,
Barack Obama. Christians make up very small fractions (0.1% to 1.5%) of the Syrian refugees who have registered with the
UN High Commission for Refugees in Syria, Jordan, Iraq, and Lebanon; those registered represent the pool from which the U.S. selects refugees.
António Guterres, then-UN high commissioner for refugees, said in October 2015 that many Syrian Christians have ties to the Christian community in Lebanon and have sought the UN's services in smaller numbers. In January 2016, the
Department of Justice (DOJ), on request of the
Senate Subcommittee on Immigration and the National Interest, provided a list of 580 public international terrorism and terrorism-related convictions from September 11, 2001 through the end of 2014. Based on this data and news reports and other open-source information the committee in June determined that at least 380 among the 580 convicted were foreign-born. The publicly released version of Trump's August 15 speech quoted that report.
Alex Nowrasteh of the
Cato Institute said the list of 580 convictions shared by DOJ was problematic in that "241 of the 580 convictions (42 percent) were not even for terrorism offences"; they started with a terrorism tip but ended up with a non-terrorism charge like "
receiving stolen cereal". The day after Executive Order 13780 was signed, Ohio Congressman Bill Johnson said 60 individuals of the 380 foreign-born individuals or 580 total individuals (16% or 10%, respectively) were from the seven countries implicated by Executive Order 13769, but because Iraq is not among the six countries implicated in Executive Order 13780, Johnson suggested the number may be lower than 60 for countries implicated by that executive order. Nowrasteh notes 40 of the 580 individuals (6.9%) were foreign-born immigrants or non-immigrants convicted of planning, attempting, or carrying out terrorist attacks on U.S. soil (his analysis does not specify whether any, some, or all 40 are from the six or seven countries specified by executive orders 13780 or 13769). He contrasts this figure with EO 13780's statement that "[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States", which he says requires including planned acts outside the United States" because "If the people counted as 'terrorism-related' convictions were really convicted of planning, attempting, or carrying out a terrorist attack on U.S. soil then supporters of Trump's executive order would call them 'terrorism convictions' and exclude the [descriptor] 'related'." ==Development==