Trump Memorandum Adjusts Effective Date of Executive Order 13780

(June 26, 2017 Update): On June 26, 2017, the Supreme Court of the United States lifted in part the injunctions against sections 3(c) and 6(a) and (b) of the Executive Order. The injunctions will only apply to affected individuals who have a bona fide connection to a person or entity in the United States. Please see our full article to learn more [see article]. We will update the site with information about how this affects the implementation of the Executive Order.

Overview of President Trump's Memorandum on Effective Date of Executive Order 13780

On June 14, 2017, President Donald Trump issued a Presidential Memorandum titled “Effective Date in Executive Order 13780” to the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence [PDF version].

President Trump issued Executive Order 13780, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” on March 6, 2017 [PDF version]. Executive Order 13780 has many provisions, but two were enjoined by the United States District Court for the District of Hawaii. These provisions provided for, among other things, the suspension of entry for nationals of six countries [see article] and the suspension of refugee travel [see article]. The United States Court of Appeals for the Ninth Circuit upheld the injunction issued by Hawaii, and the United States Court of Appeals for the Fourth Circuit upheld a separate but slightly narrower injunction. The Department of Justice has asked the Supreme Court of the United States to take an appeal from the Fourth Circuit decision, but the Supreme Court has not yet taken action on the request [see blog].

Due to the suspension of entry and suspension of refugee travel provisions having been blocked, the suspensions were slated to expire without ever having gone into effect. In the Presidential Memorandum, President Trump took the position that the enjoined provisions of sections 2, 3, 6, and 12(c) of Executive Order 13780 were “delayed or tolled” until the injunctions are lifted or stayed. President Trump then declared that the effective date of each enjoined provision is now the date on which the injunctions are lifted or stayed with respect to each enjoined provision. He added that the Presidential Memorandum “should be construed to amend the Executive Order” to the extent necessary.

President Trump added that because the effective date of section 12(c) (providing that previously issued visas before a certain point not be revoked) has been delayed, no nonimmigrant visas issued to nationals of the six countries listed in section 2(c) before the new effective date shall be revoked under the Executive Order.

In the event that the injunctions are stayed or lifted, President Trump directed the relevant agencies to jointly begin implementing sections 2 and 6 of Executive Order 13780 (suspension of entry and suspension of refugee travel, respectively) 72 hours after all applicable injunctions have been lifted or stayed with respect to a specific provision. Until that transpires, President Trump made clear, visas may be issued to aliens who would otherwise be affected by sections 2 and 6 and such aliens may be admitted.

Conclusion

Based on the language of Executive Order 13780 and the decisions of the relevant courts enjoining certain provisions of it, it was not clear whether the specific time periods that were slated to take effect on March 16, 2017, had been tolled. President Trump took the position that they were either “delayed or tolled,” and that the periods would commence to run within 72 hours of the injunctions being lifted or stayed with respect to specific provisions.

It is important to note that, until or unless the injunctions or stayed or lifted, the suspension of entry and suspension of refugee travel provisions of Executive Order 13780 are not in effect. Furthermore, visas issued now will not be subject to revocation under Executive Order 13780.

Most observers expect that the Supreme Court will opt to hear the case. We will continue to update the site with more information as it becomes available.

Many provisions of Executive Order 13780 were not enjoined. To learn more, please see our articles on its effects on the Interview Waiver Program [see article] and other changes it proposes to immigration procedures [see article]. Additionally, please see our related posts on Department of State (DOS) cables relating to the implementation of Executive Order 13780 [see article] and on new vetting procedures affecting a small number of visa applicants [see article].