Resource: Summary: Wagafe v. Trump, a Preview of ‘Extreme Vetting’ Litigation

By: Gambhir, Harleen

January 3, 2018

The Ninth Circuit held on Dec. 22 that President Donald Trump’s latest executive order exceeded both his independent Article II authority and his statutory authority under the Immigration and Nationality Act (INA). (See Lawfare analysis of the opinion from Peter Margulies and Josh Blackman.) The Ninth Circuit stayed its decision pending Supreme Court review. This allows the administration’s travel restrictions to take partial effect, in accordance with prior Supreme Court and Ninth Circuit rulings that, while cases related to the order are pending, the government can block most citizens from Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela from entering the United States if those individuals lack a “bona fide relationship with a person or entity in the United States.” Litigation over the executive order continues in multiple federal circuits.

But the administration’s critics aren’t just concerned with the executive order. Civil liberties organizations have also brought challenges (see Wagafe v. Trump, Brennan Center v. Department of State, and Knight First Amendment Institute v. Department of Homeland Security) regarding Trump’s promised “extreme vetting” of immigrants, possibly through an “ideological screening test” to exclude those who “support bigotry and hatred.” Some plaintiffs are seeking further information on how “extreme vetting” would change immigration protocols, while others are bringing challenges to existing federal programs that allegedly enact “extreme vetting.” The outcome of these cases will affect foreign nationals’ ability to be naturalized and remain in the United States, regardless of any later determination on the legality of the executive order.