The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Trump issued an executive order late Friday afternoon that, as the New York Times summarizes, "suspended entry of all refugees to the United States for 120 days, barred Syrian refugees indefinitely, and blocked entry into the United States for 90 days for citizens of seven predominantly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen." There has been a lot of action on the order in the courts today, and the disputes may be the first serious test of how the Trump Administration will deal with checks and balances.
Apparently, the usual agencies were kept out of the loop in the drafting of the order. On Fox News, Rudy Giuliani has taken credit for assembling a group of people who he claims drafted it. Giuliani states that Trump wanted a "Muslim ban" and that he needed a way to do it legally. According to Giuliani, his team decided to focus on countries rather than religion to give it "a factual basis" in terrorist threats, "not a religious basis."
Benjamin Wittes rips into the order in a long post titled, Malevolence Tempered by Incompetence: Trump's Horrifying Executive Order on Refugees and Visas. The whole thing is worth reading, but here's an excerpt:
Is this document a reasonable security measure? There are many areas in which security policy affects innocent lives but within which we do not presumptively say that the fact that some group of people faces disproportionate burdens renders that policy illegitimate. But if an entire religious grouping finds itself irrationally excluded from the country for no discernible security benefit following a lengthy campaign that overtly promised precisely such discrimination and exactly this sort of exclusion, if the relevant security agencies are excluded from the policy process, and if the question is then solemnly propounded whether the reasonable pursuit of security is the purpose, I think we ought to exercise one of the sovereign prerogatives of philosophers-that of laughter.
So yes, the order is malevolent. But here's the thing: Many of these malevolent objectives were certainly achievable within the president's lawful authority. The president's power over refugee admissions is vast. His power to restrict visa issuances and entry of aliens to the United States is almost as wide. If the National Security Council had run a process of minimal competence, it could certainly have done a lot of stuff that folks like me, who care about refugees, would have gnashed our teeth over but which would have been solidly within the President's authority. It could have all been implemented in a fashion that didn't create endless litigation opportunities and didn't cause enormous diplomatic friction.
How incompetent is this order? An immigration lawyer who works for the federal government wrote me today describing the quality of the work as "look[ing] like what an intern came up with over a lunch hour. . . . My take is that it is so poorly written that it's hard to tell the impact." One of the reasons there's so much chaos going on right now, in fact, is that nobody really knows what the order means on important points.
Tonight a handful of federal judges have temporarily blocked parts of the order. As the Post summarizes the first two judicial rulings:
A federal judge in New York blocked deportations nationwide late Saturday of those detained on entry to the United States after an executive order from President Trump targeted citizens from seven predominantly Muslim countries.
Judge Ann Donnelly of the U.S. District Court in Brooklyn granted a request from the American Civil Liberties Union to stop the deportations after determining that the risk of injury to those detained by being returned to their home countries necessitated the decision.
Minutes after the judge's ruling in New York, another came in Alexandria when U.S. District Judge Leonie Brinkema issued a temporary restraining order to block for seven days the removal of any green-card holders being detained at Dulles International Airport. Brinkema's action also ordered that lawyers have access to those held there because of the ban.
Just a few minutes ago, a third order was entered by the federal district court in Massachusetts. And there was another such order tonight from the district court in Seattle. In case you're wondering, three of the four court orders were handed down by Democratically-nominated judges.
The important thing to watch going forward, in my view, is the Trump Administration's response to the judges' actions. In normal times, an Administration spokesperson would express respectful but firm disagreement with these preliminary rulings and say that the Administration is considering its options for further review while of course complying with the orders in the interim. I certainly hope the Trump Administration follows that safe path. At the same time, I sense a decent chance that Trump's response will be different.
For example, will Trump single out the judges, criticizing them personally as he did Judge Curiel? Will Trump take on the federal judiciary as a whole, or at least its Democratic appointees, making them another part of his "opposition party"? And in the worst-case scenario, will he echo Andrew Jackson, or at least the possibly apocryphal version of him, and order executive branch employees to ignore parts or all of the court orders?
I hope Trump does none of those things. If he does, however, it will be important to see how others in the federal government—in all three branches—respond. As always, stay tuned.