Forum on the Executive Orders on Immigrants and Refugees

At a forum on February 1, Georgetown Law Professor Marty Lederman, Professor from Practice Andrew I. Schoenholtz and Professor Philip G. Schrag helped explain to the Law Center community the recent executive orders on immigrants and refugees that are generating protests worldwide. (On February 3, Judge James L. Robart of the U.S. District Court of the Western District of Washington, a 1973 Georgetown Law alumnus, entered a temporary restraining order against the “travel ban.” The government appealed Robart’s order, and litigation continues in that case and in several other courts around the country.)

Lederman, a former assistant attorney general in the Department of Justice’s Office of Legal Counsel, explained the purpose of executive orders — which are usually “entirely uncontroversial” and “very ordinary.”

“They are one way, of many, that the president of the United States uses to set policies for the agencies…” Lederman said. “The vast majority of executive orders, and the ones we are dealing with today, are directives or requests to the federal agencies about how they should exercise their authorities — most of which are statutory in nature.”

What executive orders do not do is to provide “a unilateral usurpation of power,” Lederman said. “If it would take a statute to create an authority, the president can’t skip that step by creating an executive order.”

Lederman and Schrag discussed the principal executive orders at issue, which appear to be done pursuant to statutory authority. These include the “travel ban” that restricts people carrying passports from seven countries from entering the United States. Schrag, the Delaney Family Professor of Public Interest Law, helped explore policy and effects; Lederman helped discuss potential constitutional challenges.

“It’s a ban on travel to the U.S. by nationals from these [seven] countries including Christians,” Schrag said, noting that it is not a ban on the entry of Muslims from other countries including Pakistan and Saudi Arabia. “On its face it isn’t a Muslim ban, in reality it isn’t a Muslim ban, but it is perceived as a Muslim ban in much of the world, or an attack on Muslims…it arguably has played into the hands of ISIS.”

The second problem with the ban, Schrag said, is that it includes Iraq. “We are working with Iraq right now to try to help the Iraqi government recapture Mosul and wipe ISIS off the face of the map in Iraq, and this has created a tremendous diplomatic problem for the Iraqi government.”

Protecting women and children

Schoenholtz, the director of Georgetown Law’s Human Rights Institute, described the refugee crisis worldwide — 21 million refugees, out of more than 65 million displaced persons. He also explained the U.S. refugee resettlement program, which has been in place for decades.

“We’ve been leading the world; we’ve resettled over 3 million refugees…” Schoenholtz said. “The program has protected people because of their religion, because of their political opinion, because of their race, their nationality. It has protected over three million people by bringing them from abroad to the U.S…”

Forty percent of those protected are children, and a third are women, Schoenholtz noted. “So almost three quarters are women and children, just like most refugees in the world.”

Schoenholtz and Schrag co-direct Georgetown Law’s Center for Applied Legal Studies (CALS), a clinic in which students represent refugees seeking asylum in the United States.

At a Q&A that followed, the professors were sensitive to the fact that opinions will differ, yet noted some of the many ways lawyers and students can become substantively engaged in the issues: whether through political action, opening dialogues with those who disagree, writing op-eds, working for NGOs or working to improve those initiatives you support. “There are ways to make this more humane and still effective,” Lederman said. “No matter which side of the debate you are on, there is a lot of work to be done.”

The February 1 event was introduced by Dr. Judith Perez Caro, Georgetown Law’s director of Equity, Community and Inclusion. Georgetown Law is working to determine the impact that the Executive Order will have on members of the community. Law Center students, faculty and staff with questions or concerns may contact the Office of the Dean of Students, Counseling and Psychiatric Services (CAPS) or the Office of Campus Ministry.