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 Jonathan Corbett, Civil Rights Attorney

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muslim ban

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.

Transcript of Oral Arguments in Muslim Ban Case Shows Department of Justice Entirely Lost on How to Defend; Trump Fires Acting Attorney General

darweesh_transcriptBefore U.S. District Judge Ann Donnelly issued a temporary restraining order against
Donald Trump and the U.S. Customs and Border Patrol from enforcing a “Muslim ban” — prohibiting travel by green card holders and individuals with refugee status from 7 Muslim-majority countries — a hearing was held in which both attorneys for plaintiff Darweesh and attorneys from the Department of Justice for the government appeared.  Early media reports indicated that the U.S. Attorneys were entirely unprepared and had no defense for Trump’s executive order.  And, yesterday, Trump fired Acting Attorney General Sally Yates, allegedly after “she defiantly refused to defend his executive order closing the nation’s borders to refugees and people from predominantly Muslim countries,” according to the New York Times.

I noticed on the docket today (PDF or live version if you have a PACER account) that the transcript of these oral arguments was ready but not available over the Court’s Web site.  I managed to obtain a copy anyway which I’m now publishing for you all.

Darweesh v. DHS – Transcript of Oral Arguments on Motion for TRO, 1/28/2017 (.pdf)

Some highlights:

  1. There were five attorneys from the government there — four from the U.S. Attorney’s office and one from U.S. Customs & Border Patrol.  Not a single one of them, at any point in the 21 pages of transcript, even remotely attempted to argue that Trump’s order was lawful and the plaintiffs could not succeed on the merits.
  2. The test for whether to issue a stay is a balancing of whether: 1) the requesting party is likely to succeed on the merits, 2) the requesting party will suffer irreparable injury, 3) the opposing party will be injured, and 4) the public’s interest will be harmed.  The only one the government even tried to address was irreparable injury, by saying that Darweesh was already released and therefore couldn’t be harmed.  The judge was not interested.
    not_so_moot
  3. But, the 3 attorneys for the plaintiff from the ACLU successfully argued that they would likely meet the requirements to proceed as a class-action, and thus were arguing on behalf of everyone who was detained or threatened with deportation under Trump’s new order — so Darweesh being released didn’t end the case.
  4. The judge made clear that her ruling applied to all affected by Trump’s order.  Thus, if at other airports across the country CBP was still detaining people, they were clearly in violation of the court’s order.  And for those who feel that Trump’s order is totally constitutional, the judge specifically ruled that it was likely that plaintiffs could prove otherwise:
    so_classy
  5. The judge at times was clearly irritated with the government’s lack of response to her questions, and at one point told them that they would not be able to speak any longer.say_no_more_fam

Apparently, Trump is upset that his Acting Attorney General refused to defend his executive order.  But the real question is: What defense could they have plausibly given, especially given that apparently Trump gave the Department of Justice no notice of his plans?

If you want your executive agencies to work with you, they have to be kept in the loop.  Even then, however, it will be a hard sell for any attorney to walk into a courtroom with a straight face and say that the executive order by the guy who said he’d ban Muslims isn’t about banning Muslims, but just happens to be directed at 7 almost-all-Muslim countries.

I don’t envy anyone in the U.S. Attorney’s office’s civil litigation division right now.  They’re not getting paid enough for this shit.


“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/

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