Executive Order 2.0
Comes With More Features but it is Still the Same Device At Heart
Part One
President
Trump learnt it the hard way that his actions will be reviewable by the
judiciary. Since his first immigration ban had a troubled implementation owing
to little or no information from the Government to the airport and immigration
authorities, thousands of immigrants were stranded at airports and some of them
were not permitted to leave their home countries. The fanfare surrounding the first order was
conspicuously absent in the second. The President did not sign this order amidst cameras clicking in the White House. It
was signed in private and he sent three of his aides - Secretary of State Rex
Tillerson, Department of Homeland Security (DHS) Secretary John Kelly, and Attorney
General Jeff Sessions to address a limited pool of reporters and categorically refused
to answer questions after presenting it. The new executive order that the Trump
administration has passed on March 6, 2017 seems to have a more practical implementation
policy and a more subdued immigration policy that seems restrictive and narrow
when you view it for the first time, however, the more you examine it, the more
you realize that it is a more polished version of the first order that is the
same in substance – to restrict Muslims from entering USA.
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However, the question we are asking
at The Witness Stand is – Can Trump’s second executive order stand the
test of the judiciary?
The
media seems to think so, with some articles calling it ‘court proof’. So let us analyze Trump’s second Executive
Order (Executive Order 2.0) in light of the United States Court of Appeals
Ninth District Court’s Judgment.
Let us tell
you why the Trump government came up with the Executive Order 2.0.
1. On 9
February 2017, the State of Washington filed a suit in the United States
District Court for the Western District of Washington challenging certain
aspects of the Executive Order. The State of Minnesota also joined the suit
against the Government. The judge of the district court issued a Temporary
Restraining Order against the Executive Order, thus freezing it.
The
Government then moved to the Federal Court praying for freezing the ban on Muslims, thus effectively ensuring the ban does not have effect. Here is a brief history
of the first order:
2. On January 27, 2017, the President issued
Executive Order 13769[2],
“Protecting the Nation From Foreign
Terrorist Entry Into the United States”.
3. It is important to remember that while a direct
ban on religion is forbidden, a ban on allowing people from certain countries
to enter is not forbidden, and this is exactly what the Trump administration
did. Citing the terrorist attacks of September 11,
2001, and stating that “numerous foreign-born individuals have been convicted
or implicated in terrorism related crimes” since 2001, the Executive Order
declares that “the United States must ensure that those admitted to this
country do not bear hostile attitudes toward it and its founding principles.”
4. The executive order prevented people from the
following countries to enter the USA for a period of 90 days- Iraq, Iran, Libya,
Somalia, Sudan, Syria, and Yemen. It then suspended the USA Refugee Admission
Program for a period of 120 days. The executive order indefinitely suspended
the entry of all refugees from Syria (the 120 days time period was not
applicable to them). In all these cases, Secretaries of State and Homeland
Security could make case by case exceptions when it would be in the national
interest and when the person is a religious minority in his country of
nationality facing religious persecution.
5. This order caused wide spread confusion and
airports were filled with people who had just arrived from these nations, who
were denied the right of entry or detained in the airports. Thousands of visas
were cancelled and hundreds of passengers were stranded.
6. The two states of Washington and Minnesota moved to a lower district court to set aside this order on the grounds that it is unconstitutional and violated American federal law.
6. The two states of Washington and Minnesota moved to a lower district court to set aside this order on the grounds that it is unconstitutional and violated American federal law.
Arguments
The States alleged that the Executive Order
unconstitutionally and illegally stranded its residents abroad, split their
families, restricted their travel, and damaged the States’ economy and public
universities in violation of the First
and Fifth Amendment, the Immigration
and Nationality Act, the Foreign
Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. They also alleged that the Executive
Order was not truly meant to protect against terror attacks by foreign
nationals but rather was intended to enact a “Muslim ban” as the President had stated during his presidential
campaign that he would do, if elected.
Court's Decision
Court's Decision
·
The district court held that the move was
unconstitutional and banned the Executive Order from having effect in the form
of a temporary restraining order (“TRO”).
·
The United States Government immediately moved
to the United States Court of Appeals for the Ninth circuit (The Federal Court) for a stay of the
lower court’s order.
The
Federal Court refused to stay the temporary restraining order as they believed
that the district court’s decision was valid and that the ban was
unconstitutional and violated American federal law.
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So, the
Trump administration has come up with Executive Order 2.0 because they
understand that fighting this battle in court will be time intensive and their
victory cannot be assured. There are a few differences[3]
between the two Orders and some experts feel that Executive Order 2.0 is a
better drafted effort as one of the grounds on which the first Executive Order
had been stayed was the lack of a due process clause; though the substance of
the Executive Order 2.0 seems to restrict Muslims from entering the USA. [4]
Donald Trump has not been subtle with his intentions right from his campaign
and he is carrying them out as the President now. Further, Executive Order 2.0 exempts
the nation of Iraq from the list as many Iraqis had assisted the United States
Government in the war against terror, acting as translators and aiding the USA
military and could not go back to their home country where they may be viewed
as traitors and killed by the local militia. The ban on Iraqis was heavily
cited by opponents of the first ban as a measure of how heartless and cruel the
first executive order was, and in order to placate the public, Executive Order
2.0 has removed Iraq from the list.
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We at the Witness Stand examine three controversial
aspects of the ban and compare it to the provisions in the first Order that the
American Courts over-ruled.
1.
Judiciary
vs. Executive
On
March 6 2017, Mr. Trump via Executive
Order 2.0 clarified in Section 1 (i) of the Executive Order[6] that “in light of the Ninth Circuit's observation that the
political branches are better suited to determine the appropriate scope of any
suspensions than are the courts, and in order to avoid spending additional time
pursuing litigation, I am revoking Executive Order 13769 and replacing it with
this order, which expressly excludes from the suspensions categories of aliens
that have prompted judicial concerns and which clarifies or refines the
approach to certain other issues or categories of affected aliens.”[5]
Some
things to remember – The Ninth Circuit happens to be the Federal Court the
Government appealed to after the District Court issued a Temporary Restraining
Order against the first Executive order.
One of
the most controversial arguments raised by the Government in this case was that
the President’s powers to pass any kind of Executive Order to suspend the
admission of any class of aliens was judicially un-reviewable. The Court however,
promptly shot this down.
A Brief Analysis of
the Ninth Circuit Court’s Ruling with Respect to the Un-reviewability Claims
The
Government argued that if the Court was to rule on any Presidential Executive Order,
it would be a flagrant violation of the separation of powers principle. The
Court was rather shocked by this argument and remarked that there was no precedent to support this claim of alleged
un-reviewability, and that it ran contrary to the fundamental structure of the
American constitutional democracy.[7]
In fact,
the Court went a step further and gave the example of the landmark judgment in
American constitutional law and international human rights law - Boumediene v. Bush[8],
wherein the Congress had passed a statute that removed the right of habeas
corpus for aliens who could be potential terrorists. In that case, it was categorically
held that the ‘political branches’ lacked
‘the power to switch the Constitution on
or off at will'’. On that note, the Court rejected the Government's
extraordinary argument and stated that ‘while American jurisprudence has long counseled deference to the political
branches on matters of immigration and national security, neither the Supreme
Court nor the Federal Court has ever held that courts lack the authority to
review executive action in the arena of immigration for compliance with the
Constitution.’[9]
The
Government then cited another case law - Kleindienst
v. Mandel[10]
(“The Mandel case”) where the Court
had held that when the Executive exercises immigration authority ‘on the basis
of a facially legitimate and bona fide
reason’, the courts will not examine
the reason behind the exercise of that executive discretion. The Government wanted
to use this case to prove that the Court did not have jurisdiction to adjudicate
on a Presidential Executive Order with respect to immigration because the
authority had been exercised by the Government on a facially legitimate reason.
However,
the Court did not accept this as the Government had omitted certain important
passages from the case and focused only on the above extract. The Court went on
to elucidate that the Mandel case
dealt with an individual’s visa application based on an existing statutory law and
distinguished it from the instant case which is about the President’s
promulgation of sweeping immigration policy.
While
dealing with the question of separation of powers, the ratio was that although Courts
owe considerable deference to the President’s policy determinations with
respect to immigration and national security, it is beyond question that the federal judiciary retains the authority
to adjudicate constitutional challenges to executive action.[11]
Back to the
Executive Order 2.o
Mr. Trump
has indeed used the Court’s observation that political branches are in a better
place to determine the scope of a travel ban to his advantage. While the Court did
make that statement, it should not be read and interpreted in the absence of
its views concerning the reviewability of the Presidential Executive Order.
While
the Trump Government has understandably elaborated more about the threats posed
by the six countries in the Executive Order 2.0, these threats must be
legitimate. The Federal Court cited the case of United States v. Robel [12]
wherein it was held that – “National
defense cannot be deemed an end in itself, justifying any exercise of
legislative power designed to promote such a goal. It would indeed be ironic if, in the name of national defense, we would
sanction the subversion of one of those liberties which makes the defense of
the Nation worthwhile.”
So, the Trump government better be aware
that even the Executive Order 2.0 can be subject to judicial review. The next
aspect that needs to be examined is whether the Executive Order 2.0 covers the
lacuna present in the first. Watch out for that and much more at The Witness
Stand!
[1] https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states
[2] Executive Order, 82 Fed. Reg. 8,977
[4] http://aclum.org/wp-content/uploads/2017/03/2017_1_27-Muslim-Ban-EO-Word-VS.-2017_3_06-Muslim-Ban-EO.pdf
[7] Pg. 14 of the Judgment
[8] Boumediene
v. Bush, 553 U.S. 723, 765 (2008)
[10] 408 U.S. 753 (1972)
[11] Pg. 14
[12] 389 U.S. 258, 264 (1967)
