Federal Judge Sends U.S. Marshals to Prevent Trump from Enforcing Muslim Ban

foreign-us-customsOn Friday, our new President signed an executive order banning those from 7 Muslim countries from entering the United States, even if they had been granted refugee status, and even if they were green card or visa holders.  This blatant discrimination based on national origin (and, let’s be honest, it’s really based on religion, given that all 7 countries are Muslim-majority and Trump had flat-out said he would ban Muslims during his campaign) guaranteed a legal showdown which began yesterday after at least a dozen people with passports from those 7 nations were detained at JFK airport in New York.

Yesterday, attorneys for Hameed Khalid Darweesh filed a class action lawsuit requesting a writ of habaes corpus (court order to free a person) on behalf of Mr. Darweesh, who apparently was detained under this new order, and anyone similarly situated to him.  It’s worthy of note that this man is a refugee from Iraq who cannot return to his home country because he assisted the U.S. military during our operations there.  Filed with his petition was a motion for an emergency temporary restraining order, asking the court to prohibit U.S. Customs & Border Patrol from enforcing Trump’s order, and U.S. District Judge Ann Donnelly, after conducting an astoundingly prompt hearing,  granted that request, ordering all officers of the United States be:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.

This is widely reported by the media (CNN, The Guardian, New York Times), but perhaps because of the late hour and lack of legal analysts on hand, they missed the significance of the next paragraph of Judge Donnelly’s order:

IT IS FURTHER ORDERED that to assure compliance with the Court’s order, the Court directs service of this Order upon the United States Marshal for the Eastern District of New York, and further directs the United States Marshal Service to take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.

I’ve never seen an order like that directed against the U.S. government in my life.  What the judge just did is sent federal law enforcement affiliated with the court to JFK airport to make sure other federal law enforcement obeys the order.  In other words, Judge Donnelly does not trust that the Trump administration will follow the law and pre-emptively sent muscle to carry out her order.

If you’re to believe the Daily Kos, a source that I don’t necessarily consider reliable due to political bias on par with Fox News, but in the other direction, the U.S. Marshals were sent with good reason: they report that in other airports, U.S. Customs & Border patrol has ignored the order.  [Update: The Guardian also reporting non-compliance by CBP.]

If Trump chooses to direct his agencies to ignore court orders, this could be a very rapid beginning and end to his administration, as I cannot imagine Congress not impeaching a president who does so.  This situation may come to a head quite soon… stay tuned…

“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/

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56 thoughts on “Federal Judge Sends U.S. Marshals to Prevent Trump from Enforcing Muslim Ban

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  1. Couple links you might want to read:



    Relevant part is about half way down and says this:

    “(f) Suspension of entry or imposition of restrictions by President

    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.”

    Based on what I’ve read and regardless of the people protesting it, it seems to me that the President can do this. I might add, I read where Carter did this exact same thing when he was President. If I recall correctly, he did the same thing to Iran.

    1. Please keep in mind that the U.S. Constitution supersedes Title 8 (and every other part) of the United States Code. Judge Donnelly found that “petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to the Due Process and Equal Protection guaranteed by the United States Constitution.” Plainly, the President may not use his authority under under 8 U.S.C. § 1182 to bar immigrants on the basis of their religion or national origin. He must be able to persuade the judiciary that his actions are narrowly tailored to national security rather than to his own bigotry, and I’m hopeful that he will fail in that regard.

      1. So, the law plainly says he can do this but he can’t because some people don’t like it? Also, overlook the fact that Carter did the exact same thing to one specific country in the past without a peep out of anyone.

        I also like how you point out that it is his authority but that he just can’t use it, in THIS case. Really? Carter could use it in his case but since people don’t like Trump, he can’t use it in this case. In my opinion, his order and list of countries didn’t go anywhere near far enough. There are several countries missing that should be on the list.

        1. You seem not to understand: the Constitution *IS* the law. The 14th Amendment guarantees us all equal protection of the law regardless of our heritage, and that guarantee supersedes anything that Congress may place in the United States Code. This is not about what people “like” — this is about Trump’s order being unconstitutional.

          1. The 14th does apply to us, as in the people who are citizens or on US soil. The Constitution does NOT apply to Syria, Iran or any other country. If you are in France and give a speech that France doesn’t like, you can not claim 1st Amendment protection. Why? You are not in the US. You have NO 1st Amendment protection. Remember the guy that accidentally went to Mexico and had guns in his truck? Why can’t he claim his right under the @nd Amendment? He owned the guns legally, right? Thing is, he was not in the USA anymore. He was in Mexico. He had no expectation of protection under our Constitution did he?

            I recall that Trump was almost barred from going to Great Britain. It was all over the media at the time. It’s legal for them to do so. I’ve also read where several others have also been barred because they were planning to give speeches about islam that they didn’t like. Again, even a US citizen does not have 1st Amendment protection when in another country.

            People who wish to come here, for whatever reason, must have permission to do so from the Govt. That’s what the Govt is for.

          2. The Constitution applies to all who reach our borders, and it also applies to all actions of the U.S. government. There is no non-frivolous legal argument that the 14th does not apply to those stuck in detainment in JFK airport.

          3. Not all constitutional rights apply to non-citizens. Yes, much f the Bill of Rights applies to everyone, even illegal aliens. So any foreigner on U.S. soil prosecuted under the criminal code has the criminal law protections to, for example, due process, a speedy trial, and the Fifth and Sixth Amendments. But there are rights — even within the Bill of Rights — reserved for citizens: the right to bear arms, the right to vote, the right to hold federal jobs, and the right to run for political office.

            Immigration proceedings are matters of administrative law, however, not criminal law, so the consequence of violating immigration status is not jail but deportation. And Congress has nearly full authority to regulate immigration without interference from the courts. Because immigration is considered a matter of national security and foreign policy, the Supreme Court has long held that immigration law is largely immune from judicial review. Congress can make rules for immigrants that would be unacceptable if applied to citizens.

            I’m not saying this is good. I’m saying it’s a fact.

          4. Are you really arguing with a bunch of outhouse lawyers.
            As soon as I read homeland security was ignoring court orders the first thing that came to mind was armed U.S. Marshals.
            Even Nixon didn’t ignore Federal Court orders

          5. Well packetguy1, it seems we were right on this. SCOTUS did its job yesterday.

        2. First of all, all inadmissible aliens have statutory and due process rights to a fundamentally fair hearing, per Supreme Court jurisprudence going back more than 100 years. Second, most returning Lawful Permanent Residents are entitled to further constitutional due process protections, also per Supreme Court jurisprudence. Third, what Jimmy Carter did was totally different. In retaliation for Iran holding 52 diplomats hostage, Carter placed sanctions on Iran. These sanctions included blocking all future visas to Iran. The differences: Carter’s actions were a sanction against Iranians following an act of war, in a situation in which there was significant notice of what was going to be done, and the blocking of visas halts the immigration process from the beginning.

          Unlike Carter’s actions, Trump’s actions were cruel and unnecessary. Both because they appeared to apply to all foreign nationals with ties to 7 countries including people who were dual citizens of these countries and elsewhere and hadn’t lived in these countries since childhood, because they ignored what stage of the immigration process the individuals were in (treated equally people who were about to land on US soil after being heavily vetted at the consulate with people who had never gone through the rigorous visa process), because there was a complete lack of notice, because the rule applied to Lawful Permanent Residents (since corrected) and was therefore unconstitutional, and because the rule was applied in such a way as to cast doubt on his reasons for signing the EO in the first place (punishing nationals of countries that never had a single national commit a terrorist act on US soil while ignoring all of the countries that had their nationals commit anywhere between a handful and thousands of acts of terror on American soil). This EO was written to placate some of the bigoted Trump voters who hate Muslims, beyond a doubt.

        3. Maybe Carter got away with something he shouldn’t have? We live in different times. Anyone can easily get called out at any moment with millions of us standing by. Trump is on watch. Every move, Every word. Every little tweet. This nightmare won’t last long with ALL our eyes and ears wide open. Remember, you just witnessed the biggest March on Washington in our country’s history. People aren’t going to just sit around and let this nonsense continue.

  2. “This blatant discrimination based on national origin …”

    Discrimination based on national origin is hardly new, and is not immoral or unusual in any country. Sovereign states can and do choose who they let in, and no nation is morally obliged to admit foreigners, whether immigrants or not, who are inimical to the nation’s organizing principles.

    The use of federal forces against other government entities in the US is not unprecedented. It happened during the civil rights era. I do agree, however, that it is concerning here, but not for the reason that you seem to. My concern is that this shows the failure of the transfer power from previous administration to the new one. We may disagree with Trump’s decisions, but he has been empowered by the American people to be the executive principal going forward. This judge has not.

    1. I see it as a double standard. When Carter did this, no one said a word about it. When Trump does it, and it is badly needed given the enemy is in those countries, people start claiming it is wrong and that in this case, he can’t use the authority that is so clearly given to the executive branch.

      If Obama had signed a order just like this but also included every country in the middle east where ISIS is located, I would have supported him doing so. The countries in the list are known to have the enemy there and trying to get in this country. My only concern, there are countries missing from the list. Let’s not forget that most of the hijackers on 9/11 were from Saudi Arabia. They had their training camps in Pakistan and neither of those appears to be on the list.

          1. Judge Donnelly ruled that the detained individual had a likelihood of success on a 14th Amendment claim. Your article doesn’t even touch on the 14th Amendment. I respectfully disagree.

          2. But the judge has likely relied on a misinterpretation of law, namely the assumption that Section 1182(f), which expressly permits Trumps EO, enacted in 1952, is amended by the 1965 non-discrimination provision (Section 1152(a)). But both are still in force, and the President’s requirement to safeguard the country takes precedence over the non-discrimination law (as has been amply demonstrated by such historical precedents as immigration restrictions in wartime).

            I predict the judge’s order will be overturned or otherwise neutralized, and soon.

          3. Regarding the 14th Amendment claim, that only applies to deportation. The judge’s order is that lawful visa or green card holders not be removed from the US; it doesn’t order that they be released from detention. The government is free to detain them, as it is any foreign national, until it is satisfied that they are not a security threat.

            All Trump’s EO calls for is a temporary 90-day suspension of visitors from the seven named countries until adequate and efficient mass vetting procedures can be implemented. It’s highly likely that the government can manually vette the 100 or so “limbo travelers” in short order. If it finds reasons to object to entry by some, that is no different than any other entry rejection. Contrary to what liberals believe, neither visa nor refugee status is irrevocable.

    2. > Discrimination based on national origin is hardly new, and is not immoral or unusual in any country.

      I respectfully disagree that it is not immoral, *especially* when dealing with refugees. If you’re going to create a program to allow people who flee their home country out of fear for their lives to come to this country as a refugee, and then all the sudden say that one group is now prohibited, you are saying that these individuals’ lives are worth less. That is immoral.

      The people affected by the ban have already been cleared by USCIS. If there were something wrong with that clearance process, the corrective action should be directed at that process. That’s not what Trump is doing — he is, instead, merely implementing his own bigotry.

      > This judge has not [been empowered by the American people]

      Are you high? U.S. District Judge Ann Donnelly was appointed by a duly-elected president and confirmed by a duly-elected Congress. You seem to be lamenting that judges don’t get “on board” (or get replaced?) when there is a new president, and if you can’t see the problem with having judges be beholden to political whim, you may need to review the bases for separation of powers.

      > The use of federal forces against other government entities in the US is not unprecedented. It happened during the civil rights era

      Well, I did say first time “in my life,” and I am a bit younger than the ’60s, but as far as I know, U.S. Marshals have ~never~ been sent after other U.S. law enforcement officers. Either way, this is quite significant.

    3. No president is allowed to act unconstitutionally, as Trump has done by issuing this Executive Order. This isn’t even a close question. In fact the Secretary of DHS had to issue a statement today limiting the language of the EO as a form of damage control to (they hope) stave off some constitutional challenges. It appears that the government has already done unconstitutional things, e.g., forcing foreign nationals to give up their green cards which they are still entitled to, which they will have to reverse. The judge is just doing her job, which is made harder by the Trump administration failing to vet their proposed EO with any of the agencies empowered to carry it out, and not checking it with the OLC in order to avoid potential constitutional pitfalls. Shameful.

    4. Regardless of issues of sovereignty and their sources, the more historical and consequential questions about the impact of these policies needs to be sorted out. The use of federal forces against government entities is necessary in this case for basic concerns of national security that such policies have been historically demonstrated to put in grave and immediate danger.


  3. “Discrimination based on national origin is hardly new, and is not immoral or unusual in any country.”

    It is, however, ILLEGAL in the US. As in, against the actual law.

    This is not part of the constitution, so said law can be changed, but Trump cannot issue *executive orders* that contravene the law.

      1. “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. XIV (as applied to the federal government by U.S. Const., Amend V).

    1. This is the law and what it says.

      “(f) Suspension of entry or imposition of restrictions by President

      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.”

      How does that say he can’t exactly? If you want a link to the law itself, see my post further up.

  4. That law was passed in 1954.

    And *this law* was passed in 1965, altering it (And in fact altering most of our immigration system):

    (A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, 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.

    This is, again, a *law*. Trump cannot override laws in executive orders, and especially can’t override laws *explicitly barring the government from doing things*.

    Before you get too excited about those exceptions and go to track them down, all of those exceptions are prescribing *preferential* treatment (Of family members, or people from specific countries, or whatever), not restrictive treatment. US immigration law has some random exceptions that do allow people from certain places to be given ‘preference or priority’…it does not have any exceptions at all allowing them to be ‘discriminated against’, so don’t waste your time looking for them. (Or do, I don’t care.)

    1. DavidTC, before YOU get to excited about the 1965 law being some kind of get-out-of-jail-free card, note that the discrimination ban applies only to immigrants: those who are given permanent United States residency. Temporary visitors, such as guest workers, students, tourists, and refugees, can still be barred, even if they have a visa and are in mid-air when the ban takes plac.. Note that the 1965 law does not ban discrimination based on religion, and Trump’s ban specificity uses Radical Islam as a determinant.

      Liberals have underestimated Trump. He’s not an idiot, and his advisors are not ignorant. The ban is well structured and I predict it will survive these misguided legal attacks. And it’s certainly not immoral: every sovereign nation has the innate right to block people bent on overthrowing that nation.

      You also misunderstand executive orders. They can, in fact, override existing laws, as Obama has done on several occasions. In fact, executive orders can have the same effect as federal law under certain circumstances. Congress is free to enact a new law overriding any executive order, but that rarely happens.

      1. > You also misunderstand executive orders. They can, in fact, override existing laws…

        The comment section didn’t yet have enough misstatements of law. Thank you for adding one more. The President may not override the law by his own decree.

          1. The entirety of my civil rights work, save for the last week, was challenging the Obama administration for the last 6+ years. Obama did a lot of fucked up things as president, and that doesn’t make it right.

        1. With all due respect, that’s incorrect. Obama issued an executive order in 2012 halting the deportation — under existing law — of hundreds of thousands of illegal immigrants brought to the U.S. as children. He later issued one raising the minimum wage for federally contracted workers to $10.10 from $7.25 an hour.

          Also, as you should well know, executive orders can restrict even fundamental constitutional rights, such as the fourth amendment prohibition against unreasonable search and seizure. Prior to the Patriot Act, Bush issued executive orders grounding all aircraft, and then others imposing mandatory searches at airports — a clear violation of the fourth amendment. You and I know this is just security theatre, but nonetheless, it’s been held to be legal.

          1. Those executive orders used authority (or at least purported to) that Obama was given by Congress. That is different from using an executive order to contradict the authority given by Congress (as bounded by the Constitution).

          2. “Those executive orders used authority (or at least purported to) that Obama was given by Congress. That is different from using an executive order to contradict the authority given by Congress (as bounded by the Constitution).”

            Those are just recent examples, and your argument that these didn’t supersede existing laws seems pretty weak. But there are plenty of other examples, including Lincoln’s suspension of habeus corpus and the Japanese internment camps.

            Show me the law that prohibits executive orders’ overriding existing law. You can’t, because there isn’t one. EOs themselves are not specifically described in the Constitution: they’re a doctrine derived from the exigencies of executive management.

        2. You certainly have. I been following your work long before I ever commented. You have been a serious thorn in the side of the TSA for sure.

          1. Definitely hoping that we, as a society, can start to look less at whether the person implementing a law is “on our team” or not, and more at the content of the law. Hopefully Trump will teach us that lesson. 🙂

      2. DavidTC, before YOU get to excited about the 1965 law being some kind of get-out-of-jail-free card, note that the discrimination ban applies only to immigrants: those who are given permanent United States residency.

        …and you have apparently not been paying attention today, because Trump’s EO did, in fact, apply to those people. In fact, although he’s backed off a bit, he’s *still* trying to apply it to them.

        Note that the 1965 law does not ban discrimination based on religion, and Trump’s ban specificity uses Radical Islam as a determinant.


        Wow, we need a word for when someone attempting to argue a point uses the position that literally *everyone stays away from because it won’t last a second in court*.

        Firstly, Trump’s EO, quite literally, banned people based on country of origin, not religion. Those are the actual words in it. The qualifications for entrance are literally based on the country of citizenship. You can’t just pretend it says something else.

        This is because, of course, barring someone on the basis of religion would run into serious first amendment concerns.

        Now, you’re about the argue that people at the border ‘do not have rights’, but that isn’t the problem. The first amendment, in fact, says nothing about *people* having rights at all.

        The first amendment bars US government from ‘creating an establishment of religion’…aka, it cannot *define* a religion. It cannot create any groupings about religions at all, and cannot put people in them. (And, no examples of it collecting voluntary self-described purely-informative data for statistical purposes does not disprove them…wake me up when the government has mandatory religious classification and that has even slightly held up in court.)

        This is also why Trump’s idea of allowing people in who are of a minority religion is nonsense. Someone can just says ‘Yeah, I’m a Christian. I follow the seven pillars of Islam, read the Koran, you know, perfectly normal Christian stuff…and I believe your constitution forbid you, an executive officer of the US government, from attempting to define Christianity, so you’ll just have to take my word for it that that is Christianity. Methodist, specifically. Praise Allah.’.

        Or they can assert they are literally *singular* minority in their religion, because they happen to believe that Mohammed was exactly 5 feet 9 and 7/16ths of an inch tall, and no other sect of Islam believes that. (Or has any opinion at all on that subject.) They are, themselves, the sole practitioner of that religion. The US government can’t say ‘Well, that doesn’t really sound like a different religion’, because, again, the US government is not allowed to define what is and isn’t a religion, or the same religion as some other religion.

        The government simply cannot do that. It can’t classify people by religion, it can’t get people to classify themselves and then argue about how people have classified themselves, it can’t even force people to classify themselves into specific categories without argument. It doesn’t matter what rights people who are trying to get into this country have or don’t have, because the US government cannot operate as if classifications of religions *exist at all* in any objective sense.

        This is why current refugee laws allows people to claim religious discrimination if they are prosecuted, in any way, for their religious beliefs, *without trying to figure out what religion they are*, or what religion the people attacking them were. Because current refugee law was not ghost written by a Nazi for a moron.

  5. Just wanted to thank you for your analysis here, Jon. And your patience with low-information readers. Much more patience than I can muster.

  6. I’m donating some $$ just for the extreme patience you’ve shown here…I studiously avoid the comments sections at all costs lest I lose what’s left of my sanity in this new bizarro Trump era. Thank you Mr. Corbett for fighting the good fight online and in the courtrooms to preserve our civil liberties for ALL!!!

    1. Thanks very much for your support. Getting people to understand *why* Trump is wrong is critical. For those that don’t understand the constitutional issue that Trump is creating, I am happy to explain.

  7. DHS Vows to Enforce Donald Trump’s Executive Order:

    “The Department of Homeland Security will continue to enforce all of President Trump’s Executive Orders in a manner that ensures the safety and security of the American people,” the agency made in a statement sent to reporters on Sunday. They reminded Americans that only a small percentage of travelers were affected by the new restrictions.

    The agency noted that although some individuals were held for further screening, some of them were allowed entry into the United States, despite protesters at area airports describing the order as a “Muslim ban.”

    “These individuals went through enhanced security screenings and are being processed for entry to the United States, consistent with our immigration laws and judicial orders,” the department said.

    The agency did not signal that they were prepared to back down from the rigorous enforcement of Trump’s executive action.

    “The Department of Homeland Security will comply with judicial orders; faithfully enforce our immigration laws, and implement President Trump’s Executive Orders to ensure that those entering the United States do not pose a threat to our country or the American people,” the statement concluded.

  8. Travelers Affected By Trump Ban Forced To Unlock Phones, Computers:

    Since the executive order was implemented, however, many of those being denied entry at airports across the country have reported being specifically questioned by border agents about their social media presence, as well as being forced to give agents access to their phones and other devices.

    Fred Jennings, a digital rights attorney with the law firm Tor Ekeland, P.C., was one of the dozens of lawyers providing legal assistance to travelers detained at New York’s John F. Kennedy International Airport. He spoke to one legal U.S. resident from a North African country who was detained and questioned by CBP agents for seven hours without any food or water, he said, and during the interrogation, the traveler was ordered to open their laptop and let customs agents examine personal files and social media accounts.

    “[The agents] went through all browsing history, took down the computer login password, went through the person’s Facebook account, and went through image files on the computer” before seizing the device, Jennings told Vocativ. “This is a green card holder. They’ve never been treated this way on prior trips.”

    Read More:

    1. Joe, the headline of this article is misleading. Nobody can be forced to unlock any device. The most the CBP can do is hold the device for study and eventually return it to the owner (possibly after weeks). That’s disconcerting, but it’s not unique to “Travelers Affected By Trump Ban”. ANYBODY returning, including U.S. citizens, are subject to this search. I don’t like it, but it’s not an aspect of the current travel restrictions.

  9. The title is misleading and alarmist. The judge authorized the use of US Marshals, but, to date, none have actually been sent. The photo is an illustration, not a picture of Marshals on the way.

  10. Kind of late reading this article and feed back.
    This federal judge issued a Federal Common law based on a lawsuit filed in Washington state.
    Did this judge take the oath of office per Article 6 Section 2-3 of the constitution? Of course he did!
    Is the Us Code not the statues/Law of the United States?
    If the president issued a Executive order/Proclamation under the authority of the US Code,
    Didn’t this judge thusly violate his Oath of office and therefore his order should be voided and he removed from his position?

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