What a President Can Do With an Executive Order — And Why Trump’s Muslim Ban is Illegal

trump_signingOn Sunday I published a post about Trump’s “Muslim ban,” a decision to exclude green card holders and refugees from 7 Muslim countries.  The post was the most shared on this blog ever (over 10,000 shares on Facebook alone!), and attracted a lot of comments.  Some people felt that Trump’s decision, which he made by “executive order,” was perfectly legal.

Is it?

Well, let’s start with what a President does.  We know he runs the executive branch, but what does that mean?  The President’s authority comes from the U.S. Constitution (either directly or from Congress giving him some of their authority), and we can mostly divide what a President does into two categories:

  1. “Foreign stuff” – The President is our chief diplomat, the commander of our military,  and the person with whom other countries must negotiate when they want something from the United States.  These powers are granted in Article II, Section 2, of the Constitution.
  2. “Domestic stuff” – Some of this we’re familiar with: things like signing and vetoing laws, appointing U.S. Supreme Court justices, granting pardons, and the like.  These powers are also granted by Article II, Section 2.  Then there are the powers granted by Congress to run more day-to-day affairs.  Through the use of agencies, such as the FCC, FDA, FBI, and hundreds of others, the executive branch accomplishes its work, and the President is the head of those agencies.  And, sometimes Congress gives power specifically to the President rather than to an agency.

With this background, an executive order is a direction that an agency of the government enforce the law in a certain way, or to make a formal use of a power specifically granted to the President by Congress.  Since 1907, the Office of the Federal Register has cataloged and numbered each executive order — the Muslim ban order was #13769.

When it comes to agencies, the President gets to fill in the blanks.  So, a President could order the FBI to step up their enforcement of marijuana laws because Congress allows the FBI to enforce the laws, but didn’t specify how much emphasis should be placed on marijuana.  A President could also order the IRS to send bills to taxpayers only in gold-foil envelopes, because Congress authorized the IRS to send bills, but did not say what the envelopes in which they are sent must look like.

But, the President may not order something contrary to the law, nor fill in the blanks where there are no blanks to fill.  For example, Obama couldn’t order the FCC to confiscate the cell phones of those who text-and-drive, because that doesn’t fit into any grant of power by Congress to the FCC.

So, did the President issue the Muslim ban order pursuant to a legitimate grant of power by Congress?

No.  Here’s why.  Trump could try to defend his actions on the basis of a law passed by Congress numbered as 8 U.S.C. § 1182(f), which states in part: “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 non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

At first glance, it does seem like Congress authorized the President to discriminate against anyone as long as he deems it necessary or appropriate.  But, if you scroll back up to the top of the page and read one sentence a little more carefully, you may see Trump’s problem: “The President’s authority comes from the U.S. Constitution (either directly or from Congress giving him some of their authority)…”

Congress cannot give the President authority which it does not have to give.  The U.S. Constitution does grant Congress the authority to deal with immigration, but that authority is restrained by limits set by other parts of the Constitution.  Specifically, the 14th Amendment reads in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”

This is the “Equal Protection Clause” you’ve surely heard of, and the U.S. Supreme Court has broadly interpreted it to prevent the government from discriminating against any race, religion, or national origin (among others), unless the government has an extraordinarily strong reason for doing so and cannot do so in another way which would be less discriminatory.  (It has also applied the 14th Amendment to the federal government even though the text of the law uses the word “states.”)

This is, in my opinion and the opinion of every federal judge to consider the matter so far, where Trump must fail.  Congress does not have the authority to give Trump a power that violates the Equal Protection Clause, and therefore to the extent that 8 U.S.C. § 1182(f) may purport to do so, it is void.  People may argue about whether the government has a compelling reason to discriminate here, but there is little argument that there is not a way to secure our country in a less discriminatory manner.  Trump’s order is, therefore, illegal.

34 thoughts on “What a President Can Do With an Executive Order — And Why Trump’s Muslim Ban is Illegal

Add yours

  1. I thought this was a temporary ban while the applicants were undergoing “extreme vetting”. Not unlike a police officer stop and frisk vs an arrest and detainment. I also thought there were special circumstances pertaining to the entry into the country. Like you do not have your rights to privacy and they can search your car and person without probable cause. Trump probably should have left this bees hive until later in his presidency. But anyone the globalists hate so much I support.

  2. Your essay is misleading when it says every federal judge has agreed with you that the Equal Protection clause forbids the kind of alien restrictions Trump has implemented through EO. That may be true with the handful of activist judges who’ve ruled so far in this specific case, but it’s hardly been the case throughout history. In fact, I think it’s fair to say that federal judges — and SCOTUS — have had exactly the opposite opinion until now.

    In the second century of America’s existence, both Presidents and Congress have created all kinds of discriminatory immigration laws, from quotas to outright bans of Chinese immigrants. But let’s just look at modern history for examples contradicting your theory that Equal Protection applies to aliens (which includes both visitors AND immigrants).

    In 1965 Congress passed the Immigration and Nationality Act, which eliminated the quota system based on nationality. So at least up to this point, these quotas were deemed Constitutional. But the 1965 Act prioritized immigrants who already had family members in the U.S. That’s hardly Equal Protection, is it?

    The Act also Added new protections for refugees from areas with violence and conflict. That discriminates against immigrants from peaceful countries!

    What Federal Judge ruled against these restrictions? None that I can find. In fact, I find that the Supreme Court has historically permitted the president and Congress a good deal of authority to regulate immigration in all kinds of discriminatory ways.

    Even recent history contradicts your theory. President Obama signed an EO giving special protection to the families of undocumented immigrants with U.S.-born children. So not only is there discrimination, but it’s implemented by an EO, which you say is not legal.

    Unequal! Unfair! Many conservatives did cry foul at this power grab. But where was the Federal Judiciary in this purportedly unconstitutional extralegal act?

    Golfing, apparently.

    1. > Your essay is misleading when it says every federal judge has agreed

      But that’s not what I said. I said “every federal judge TO CONSIDER THE MATTER SO FAR.” Yes, at different points in history, judges have allowed many kinds of discrimination. I don’t think we’re at one of those points.

      1. The plain meaning of “to consider the matter so far”, assuming by “matter” you meant equal protection applying to aliens, encompasses all federal judges considering that throughout history. But no federal judges before this year ever have decided that equal protection applies to aliens.

  3. I am no fan of Trump by any means, and I harbor no ill will toward Muslims, but where does his EO specifically target them?

    I think your point is quickly countered by the fact that Indonesia isn’t on the list.

    I find the constant labeling of this EO as a Muslim ban to be highly disingenuous, because it is simply not strictly that. It makes us on the left look histrionic, which is seldom a persuasive emotion.

    Indeed, revoking visas and worse, the rejection of travelers essentially in mid-flight, was awful, but it still isn’t a ‘Muslim ban’ per se.

    The liberals on the court will find this EO unconstitutional, because they’ll read into it the intent, and they seem to think that the entirety of their jobs are all about protecting suspect classes (I hate the conversatives even more, but I’ve had enough of the extremists on both sides), but that’s also not persuading the commoner, who will give us another 4 years of Trump if the court splits on this along party lines.

    Trumps deliberate, highly inflammatory antagonism won’t be muted by a fire with fire response, but the voices that the right is hearing right now are advocating for exactly that.


  4. I am personally against the Muslim ban, and glad that judges are fighting back. It just seems, from what I understood from your explanation, that the law directly contradicts the constitution in this case.

    Maybe they will be asked to show proof that those specific countries are a risk for America? In that case I think the numbers will fail them anyway.

  5. While I totally agreed the ban is outright stupid and inhumane, I do not overly agree with your legal argument. The ban lacked proper vetting and is totally lacking in factual foundation. Without researching it, I also have a feeling it may violate various international human rights treaties, but unless I am called on to submit a brief, I see no reason to spend the many hours needed to review those treaties.
    One of my real concerns is the total lack of backbone by Congress in this mess. Where the members do make a statement it is some political BS such as I fully support freedom but I also fully support national security. Which means what?
    In one way I am extremely happy with this ban, and it shows our court system does occasionally have some backbone, and I am also hopeful that if it makes it to the Supreme Court, that that Court would put some restrictions on Executive Orders which as we now see, are just a way for the President to be a dictator.

    Libertarina, Roland Riemers of ND

    1. > International treaties take priority over the U.S. Constitution

      Er, no, I would not say that is an accurate statement of law. But if the U.S. is a party to a treaty that was ratified by Congress, the treaty is law — just subject to the Constitution.

  6. ” Reprinted in Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. J. Res. 1 and S. J. Res. 43, 83d Cong., Ist Sess., 862 (1953).
    Under our Constitution, treaties become the supreme law of the land. They are, indeed, more supreme than ordinary laws for congressional laws are invalid if they do not conform to the Constitution, whereas treaty law can override the Constitution. Treaties, for example, can take powers away from the Congress and give them to the President; they can take powers from the States and give them to the Federal Government or to some international body, and they can cut across the rights given the people by their constitutional Bill of Rights.”

    At least, the above is what I was taught in law school. But, treaty law is not normally used in the US of A in the courts, just like it is often hard just to get a court to just follow our Constitution. And in many instances, the US of A has not endorsed Civil Rights Treaties that have been approved by about ever other county of the world. Thus, lawyers and courts ignore most treaty obligations, and it is kind of the sleeping giant in the back of the court room.

    Libertarian Roland Riemers of ND

  7. Jonathan, while I agree with you on many issues I take Issue with your terminology in this piece, ——-On Sunday I published a post about Trump’s “Muslim ban,” a decision to exclude green card holders and refugees from 7 Muslim countries. ——-It is not a Muslim Ban, It is a Ban of peoples from Terrorist countries, those countries also have Christians, Hindu, Jews, Atheist, and any other Religion……Religion is not he Issue, Terrorism is the Issue…..Those countries have an Alarming amount of Terrorism Ties, the Ban was for EVERYONE –NOT–Just Muslims…….That is what the mainstream media is failing to report as well….trying to make it look like it was religiously motivated, which it was not. It was about Terrorism and the Countries where it flourishes freely….and the Inability to determine through the Vetting Process who is a potential threat to the USA.

  8. The Muslim Ban is MUCH MUCH worse than you’re being told:

    An article in ‘Papers, Please’ reveals the Muslim ban is all about gov’t. and corporate control.

    The ongoing #MuslimBan on citizens of certain countries — even dual citizens of more favored countries, and even asylum seekers — boarding flights to the US, is made possible only by a combination of measures put in place (largely without mass public challenge) by previous US administrations:

    1.Requirements for air travelers to possess and show ID documents prior to boarding flights. (Anonymous passengers cannot be profiled, tracked, or controlled on the basis of their identities or the attributes in databases linked to their identities.)
    2.Requirements for airlines to send government agencies identifying and other information about passengers.
    3.Installation of control lines converting this notification system into a permission system by preventing any airline from issuing a boarding pass or allowing a passenger to board unless and until it receives an individualized, per-passenger, per-flight “Boarding Pass Printing Result” (BPPR) message.
    4.Rules for admissibility to the US that overtly discriminate against citizens (including dual citizens) of, and previous visitors to, specified Muslim-majority countries, which were signed into law by President Obama on December 18, 2015.
    5.“Carrier sanctions” that fine airlines or other common carriers that transport people who are subsequently denied admission to the US. (More on these below.)

    Those who don’t want the #MuslimBan continued or expanded to other categories of targets and victims should resist all of these measures, and work to have each of them overturned as unconstitutional or repealed.

    The locus of the #MuslimBan has shifted from airports in the US (back) to airports, airline offices, and travel agencies abroad, and from US government agents (back) to airline check-in and ticket sales staff and contractors.


  9. Joe, although each point you make is true, I don’t see how they make the Trump ban “worse” in any way. Also, your implication seems to be that there is some kind of conspiracy here with previous administrations to assault citizen freedoms, but the truth is that each of the actions you list has been a rational response to crime and terrorism, dating back to the 1970s.

    For example, international travelers have had to show their passport to board a flight at least since 1971, as a result of Dawson Fields series of hijackings of international flights.

    Similarly, foreign airports have been required to forward their passenger manifests, with passport numbers and types, to US Customs, since the mid 1970s, to facilitate criminal background checks on incoming passengers, after a spate of criminals fleeing the jurisdictions of their crimes.

    BPPR was a response to 9/11.

    Obama’s 2015 suspension was in direct response to a failed plot by Iraqi nationals living in Bowling Green, Ky., to send money, explosives and weapons to al-Qaida.

    All of these have been reactionary responses to successful attacks. For the first time, Trump is implementing _proactive_ security measures. We’ve all seen the escalating terrorist threat, and intensified vetting is a rationale response to this increased threats. Contrary to the opinion of some, we don’t have any legal obligation to admit ANY aliens without verifying that they (a) aren’t criminals and (b) aren’t from countries that don’t cooperate with US security vetting.

    That is all that is happening with Trump’s temporary ban. It’s not been made “worse” by anything other then terrorists themselves.

    1. One of the problems is that the Customs and Border Protection (CBP) officials believed, that they could remove Green Card holders/Legal Permanent Residents (LPR) from the U.S. by not allowing them to enter the country.

      Congress passed a law that covers how an LPR can be removed for and the process that had to be used which included legal representation and appearance in an Immigration Court.

      None of that was happening. Attorney’s would learn of someone with an LPR being detained and they’d fill out a G‑28 form and would attempt to present it to CBP officers.

      But the CBP officers would refuse to accept the G-28 (or for that matter, any other document from attorneys), and at one point, locked the door to keep attorneys out.

      The CBP officers also would not allow lawyers to provide any sort of legal representation to the LPRs who were being detained.

      A few lawyers filed a request for a temporary restraining order and a writ for the release of a 70-year-old mother.

      The mother, Shahin Hassanpour, had applied for and been vetted for permanent residence, prior to the EO being issued, but was immediately detained by CBP.

      Despite the fact that she had been vetted and posed no harm to the United States, The CBP threatened her with a permanent ban from the U.S. if she did not sign a form withdrawing her application for admission.

      1. “One of the problems is that the Customs and Border Protection (CBP) officials believed, that they could remove Green Card holders/Legal Permanent Residents (LPR) from the U.S. by not allowing them to enter the country”

        Joe, that’s Fake News. No LPRs were removed. According to CNN, “Green card holders from the seven banned countries, when they land, will undergo additional security screening, including an interview and having their fingerprints checked, sources told CNN. If there are no red flags, then they would be allowed entry.”

        There is nothing discriminatory here, because we’re talking about detention, not deportation, of LPRs. ANY alien is subject to detention, depending on intelligence CBP has about the alien. I was traveling with a German friend in the 1990s who had a green card for hist work as a translator. He was detained for eight hours based on a minor drug conviction he sustained in Germany when he was a youth.

        There is a lot of Fake News out there on this issue. The claim that LPRs were “removed”, or even that CBP believed than they could be removed, after arrival in the US, has no basis in fact. If I’m wrong, show the an incident and I’ll happily correct myself.

        Even citizens can be detained without probable cause or even reasonable suspicion. For example, I was detained several years ago when returning from Canada. I refused to give US CBP my password, and when they said they would detain me until I did, I asked for a lawyer. They let me go immediately, but they did keep my laptop (after giving me a receipt) for a week. I was plenty unhappy, but CBP is legally entitled to do this, even to citizens.

        The idea that the US is somehow being immoral in this border detentions is another slab of Fake News. Other democracies are much harsher. Canada, for instance, can and has arrested aliens (including US citizens) for failing to give their passwords to devices, can fine them up to $25,000, and imprison them.

  10. I have no problems keeping terrorists out, or even future welfare queens or drug dealers, but the EO does none of this while being insensitive to the real needs of people in very difficult conditions. To call if a “minor inconvenience” may be true for a few, but it can also effectively be a death sentence to the innocent as well. It therefore is un-American and un-humane and immoral.

  11. I’d like to point out a confusion that some seem to have between ID checking of International travelers and ID checking of US citizens for internal travel.

    The former is the ONLY subject of the Trump ban, and institutes nothing new in principle that hasn’t been done by the US in the last 100 years.

    The latter is what most of us rail against: the idea that citizens must be required to identify themselves when traveling within our own country. This internal “vetting” is what Jonathan has so strenuously (and admirably) railed against, along with PapersPlease.org and other pro-freedom organizations.

    Passports checks have been mandatory prior to boarding international flights for at least 45 years. The checkin staff are doing two things: confirming you are indeed the person named on your ticket, and confirming (with the help of their computerized system) that you will be allowed to make your journey. They do this because if you are not allowed into your destination country, or to make a transit, their airline will have to pay to return you to your starting point or your home country. They are trying to avoid that expense by checking your status, and many destination countries, including the US, require that airlines communicate proof of that check.

    Many European airports also enforce an exit immigration check. Here they are not so much checking as they are recording. Unlike here in the US, some countries don’t let citizens travel without advance permission, or at least verification that the country has an interest in blocking their travel.

    I think several commenters have inadvertently conflated international and domestic identification issues. They are different, primarily because US Constitutional rights do not apply to aliens not on American soil. Attempts to claim the Equal Protection clause extends civil rights to foreign aliens in their own countries is not supported by any history, law, or executive order. That position is inimical to American sovereignty and our right to control who comes into our country — a right intrinsic to every sovereign nation on earth.

  12. White House Calls Travel Ban ‘a Lawful Exercise’ of Authority:

    “The executive order is a lawful exercise of the president’s authority over the entry of aliens into the United States and the admission of refugees,” Deputy Solicitor General Edwin Kneedler said in the reply.

    The Trump administration asserts the office of the president maintains broad discretion when it comes to matters of national security and immigration, and that Trump’s order falls well within such discretion. Secondly, the administration argues Washington state lacks the standing necessary to bring the claims since it does not issue travel visas.

    “As an initial matter, the state cannot challenge the denial of entry or visas to third-party aliens,” Trump’s lawyers argue. “It is well settled that a state lacks authority to sue ‘as the representative of its citizens’ to protect them from the operation of federal law.”


  13. I would like to know how any of the states filing lawsuits has legal standing. There is no evidence of imminent harm, only vague, theoretical, possible harm. Standing is a critical element of any lawsuit. It’s why I can’t sue Joe for drinking coffee in my presence. I have no standing. 🙂

    Neither does the State of Washington.

    1. Under 1954 and 1967 Treaties on Refugees (which US signed in 1967) a refugee has the right to access to the courts and to due process before being removed. So, yes, they would have “standing.”

      1. “…a refugee has the right to access to the courts … So, yes, they would have “standing.””

        A refugee may have standing, but how does a State have standing? The State of Washington is suing, not any refugee.

        1. State have standing? I agree is fairly slim. Just about everyone does NOT have standing to sue our own governments. And when we do have standing, the courts will knock you down anyway because the same government writes their paycheck each month. In current case, it is probably more politics then standing or facts or issues. Judges do not like being looked down on so Trump is nailing his own coffin by niggerizing judges. Plus, standing up to Trump allows the courts to show off their power. Anyway, we know how this will end up. 9th circuit will deny stay and remand back to district for trial. Trial will rule against Trump. 9th circuit will deny appeal of that ruling. Trump will appeal to Supremes, but by that time issue will be moot and appeal will be denied. So, Trump will issue a new and probably a better thought out EO.

  14. “…a Border Agent Stopped and Questioned Me … About My Work for te ACLU”


    I’m not sure what the point of this story is. The traveler was an alien, and like all incoming aliens, including those with a green card, is subject to questioning and refused admission. That’s been the case for decades. Only fully naturalized U.S. citizens have a guaranteed right of return. She wasn’t one. So nothing significant here.

      1. And your point is? That you wish Americans would be excluded too? Since NOBODY is claiming that we are at risk of banning ANY American citizens, your comment sets up a strong man. And sets him on fire. :).

  15. Trump seems to have it in with judges. I understand as president he can have anyone held, in secret, without charges, as a threat to national security. Maybe next we will find that our Federal judges are all suddenly disappearing?????

  16. First off Those are “NOT” Muslim countries they are countries that have a large number of Muslims, but they are not Muslim countries (unless you concede that they FORCE people to Follow Islam or Die in those countries, then they should be considered BIGOT Countries that Forcefully discriminate against non muslims. They are LABELED Muslim Countries because they have a lot of Muslims, so also by default since that region has a lot of Terrorist they could also be labeled Terrorist Countries. What you and many others dont seem to get is they are just COUNTRIES, so why not call Japan a Buddhist country, or India a SIKH country or the USA a Christian country, since that is some of their major religions…..because like the others there are many religions there, just as there are other religions in those 7 countries, and for the record Islam is the only one that says you must either Convert or Kill those that do not Follow their Religion….So According to the Qu’ran anyone in the world that refuses to Follow Islam should be put to death. So why would you advocate allowing people that want to Kill you simple because you have a different religion into the USA this goes for atheists as well they must either start believing or die also….SO QUIT MISLABELING….P.S. love the other work you do but you are off the mark here

      1. Here is a link to exactly what Trump said during the campaign. His message was very consistent, although many dis linked it.

        He never said he wanted to reduce the number of Muslims in this country. He did call for a total ban on Muslim immigration “until we cand figure out what’s going on”, given the number of radical Muslims attempting — and succeeding — at gaining entry to the US for murderous purposes, such as the Boston Marathon bombing and Miami club shooting. His statistics about the large fraction — 25% — of Muslims that hold to strict sharia law, which calls for the murder of people who don’t voluntarily convert to Islam, or who even criticize it, is accurate.

        Trump has also said on many occasions that he respects non-radical Muslims who are productive members of American society.

        I don’t see how his EO does anything unconstitutional or even surprising, given the plans he announce in advance. If anything, the actual EO is far less radical than the TEMPORARY “total and complete shutdown of Muslims entering the country” he proposed during his campaign.


  17. Only Muslums will kill non-believers? Not likely. Good Christians have been willing to also kill non-believers for the past 2 thousand years. They also do not mind stoning gays and animal lovers to say nothing about burning a few blacks, etc., who were getting a bit uppity. All religions are based on superstition of a higher power controlling our lives and thus relieving us of the responsibility of thinking for ourselves.

  18. The whole TSA system exists becuase Aliens, legal and illegal attacked the US, so how is it that the TSA gets in our pants? Seems like only persons from nations that are deemed a threat should ever have to endure the screening yet here we are, you wouldn’t even be a lawyer today if the unconstitutional TSA didn’t exist.

    So the president says since we are at war and these people wish us harm let’s stop them for a time as is prudent to identify a way to know they are not like those that caused 9/11… but no, outrage and arguments about rights of non citizens, where was all of this when DHS and the TSA rolled out?

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