Sunday 12 March 2017

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.

https://static.independent.co.uk


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.

     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 

·         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.

Imagre Credits - twitter.com

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)
[9]  Pg. 14 of the Judgment
[10] 408 U.S. 753 (1972)
[11] Pg. 14
[12] 389 U.S. 258, 264 (1967) 

1 comment:

  1. That is a well written and detailed article. This is the first time I've read your blog Di, but I'm pretty sure I'm going to be a regular reader now.

    ReplyDelete