Trump’s Immigration Order Tests Limits of Law and Executive Power
Express News Global
Three days after President Trump signed an executive order sharply curtailing immigration and the rights of refugees, questions about its reach and legality are increasingly focusing on the order’s uncertainty.
By circumventing normal practices for formulating policies and their execution, the White House has created still-swirling confusion about whom the order targets and how it will be enforced. There is also ambiguity about the legality of the order, which the White House calls extreme vetting but which critics call a Muslim ban, and about how court challenges, already underway, will proceed.
For many abroad, the ban raised questions about how an American president could undertake such an action suddenly and unilaterally, seemingly unfettered by checks and balances. The order’s apparent breaches with usual protocol over how policy is made, and potentially with the law, are already creating major problems in its enforcement.
Why has the order created such disarray?
The order targets three groups: refugees from any country, who are blocked from entering the United States for the next 120 days; refugees from Syria, who are barred indefinitely; and citizens from seven Muslim-majority countries, who are barred from entering the United States for at least 90 days. Those countries are Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
But what all that means in practice is not clear, which has led to disorder in its application.
The third measure has created the most uncertainty. The Department of Homeland Security initially said that the order barred even legal permanent residents who hold green cards.
How is the order being carried out?
The order clarifies little on enforcement, leaving customs and border officials appearing to improvise.
Several federal courts have already prohibited deportations under the ban and have ordered that individuals detained at airports or at the border have access to lawyers. But there have been reports of customs and border officials refusing to comply.
This appears to set up a potential conflict between the branches of government — a worrying possibility, as the separation of powers is a cornerstone of American democracy. Should the judicial branch be blocked from performing its role as a check on the executive, it would lead to a constitutional crisis. It is unclear how Mr. Trump would respond to such a crisis or how it would resolve.
Can the president do this unilaterally?
The president has broad powers to regulate and restrict immigration without congressional approval, though this is limited by certain constitutional protections that could apply.
Mr. Trump broke radically in this case with long-held norms of how executive power is exercised. Ordinarily, a president drafts policy changes by consulting, over a period of weeks or months, with federal agencies and other stakeholders in and outside the government.
Those practices are meant to vet a policy for its legality and ability to be enforced, as well as for unforeseen consequences. The process also lets agencies begin planning how they will execute the policy and allows those affected to prepare.
The administration appears to have largely skipped that process, drafting this and other recent orders within a small circle of political advisers. Relevant agencies and the National Security Council were granted little or no review over the immigration order before it was signed.
The result has been to leave the vast federal bureaucracy badly prepared to interpret and enforce the sweeping proscriptions. The outcome was confusion at the borders, as Customs and Border Protection officials struggled to enforce the order.
But internal vetting is about more than practicalities and legalities; it is also meant to protect the core values and interests of the United States. More voices are emerging to challenge the order on those grounds, a concern that will probably remain even if the administration amends the order to pass legal muster.
Is the order legal?
For judges to issue emergency stays, like those that have already emerged, they must determine that there is a high likelihood that the legal challenge will succeed — meaning that they think the ban is probably legally deficient, at least when applied to people who have already reached the United States and are holding valid papers.
T. Alexander Aleinikoff, a former general counsel to the Immigration and Naturalization Service and a former deputy commissioner of the United Nations refugee agency, said that the ban could conflict with both federal and constitutional law.
The refugee convention, a United Nations treaty that is incorporated into United States law, prohibits discrimination against refugees on the basis of religion. The Immigration and Nationality Act also prohibits such discrimination in the issuance of visas.
“There is also the constitutional argument that this is religious discrimination,” Professor Aleinikoff added.
The executive order’s vague, confusing language — which Professor Aleinikoff, a leading expert in immigration law, struggled to interpret with any certainty — could also leave the order open to arguments that it violates constitutional due process protections.
However, the president has broad legal authority to restrict immigration. Under the Immigration and Nationality Act, he can restrict any class of aliens he deems “detrimental
But that is usually applied more narrowly, and it is unclear whether it can be applied to religious groups.
Can the U.S. bar Muslims?
The courts have not directly decided whether the law grants the president the power to bar a religious group, such as Muslims, or if that would be a violation of the Constitution.
Federal courts may be reluctant to rule on such a broad constitutional question, Professor Aleinikoff said. They may be more willing to limit the ban or to strike it down on narrower grounds, such as a lack of regulations to put it into effect.
Narrower challenges could lead the White House to introduce a new order that is more carefully tailored to pass legal muster. Overturning the order outright would most likely require establishing that it is a ban on Muslims, which the White House has denied.
Is this a Muslim ban?
The order does not explicitly target Muslims but rather nationals of seven Muslim-majority countries, which also contain non-Muslim minorities.
However, there is growing suspicion that the order grew out of Mr. Trump’s campaign promise of, as he put it in a December 2015 statement, “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what
Critics have pointed out that, since 2001, no foreign-born citizens from the countries targeted by the order have committed terrorist attacks in the United States. The Sept. 11 hijackers originated from countries not covered by the ban. And Mr. Trump has promised exceptions for Christians from the targeted countries.
Rudolph W. Giuliani, a former New York City mayor and adviser to the Trump campaign, told Fox News on Saturday that he had helped modify Mr. Trump’s campaign proposal to temporarily bar Muslims into the current order as “the right way to do it legally.”
The question of legality matters for civic and political reasons, too. Critics across faith communities, rights groups and legal groups have charged that the order effectively targets Muslims and is therefore both illegal and fundamentally un-American.
The order and its component parts could eventually be tweaked to withstand judicial review. But it has already stirred debate about whether Mr. Trump’s approach to immigration breaks from long-held American values of pluralism and tolerance.
Even the potential appearance of enforcing federal discrimination against minorities evokes memories of some of the darkest points in American history, such as the 1882 Chinese Exclusion Act that barred Chinese laborers as racially undesirable and the internment of Japanese-Americans during World War II.
When Mr. Trump first proposed a Muslim ban in 2015, it was condemned almost universally, including by fellow Republicans. Mike Pence, who is now the vice president, wrote on Twitter at the time, “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional.”
Now that Mr. Trump is president, a number of Republican leaders are supporting the order, and many others have declined to challenge it. That, in turn, raises questions about whether American political norms could shift — or already have — to allow for policies that were considered unthinkable only a year ago.