On 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.
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:
- “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.
- “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.