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Law professors examine the constitutionality of Trump's travel, refugee ban

Constitutional law professors Jessica Silbey and Michael Meltsner consider the constitutionality of President Trump's immigration executive order. Photo via iStock.
On Friday afternoon, President Donald J. Trump signed a sweeping executive order that shut U.S. borders to immigrants and refugees from seven largely Muslim countries. The order suspended entry by all refugees from any country to the U.S. for 120 days, barred Syrian refugees indefinitely, and blocked entry into the U.S. for 90 days for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

In the days since, protesters have taken to the streets and airports where travelers were detained to decry the ban. Federal judges have issued rulings to temporarily suspend the executive order, though those rulings were ignored in at least a few cases.

Law professor Jessica Silbey characterized the executive order as “unconstitutional,” adding that the only likely recourse when agents don’t adhere to the stays imposed by district courts would pit one federal police force against another—“a scary situation.”

Michael Meltsner, Matthews Distinguished University Professor of Law, noted that the failure of certain officials to obey court orders puts at stake “the rule of law itself.”

Here, Silbey and Meltsner dive into the ins and outs of Trump’s controversial executive order.

A team of state attorneys general, including Massachusetts Attorney General Maura Healey, as well as lawyers for the American Civil Liberties Union, have called President Trump’s executive order unconstitutional on the grounds that it violates the Establishment Clause by targeting a specific religious group. Based on your expertise, are they right?

Silbey: The Constitution’s First Amendment bars the government from targeting one particular religion (or “establishing” through endorsement a particular religion over another). The executive order issued on Friday establishes preferences for “minority religions” in their countries of origin and the intent of the order was made clear in previous statements by the then president-elect that he would call for a “shutdown of Muslims entering the United States, and again this past Friday when the president said in an interview on the Christian Broadcast Network that the order was intended to give priority to “Christians” seeking asylum over “Muslims.” All of this violates the Establishment Clause’s principle of denominational neutrality by the government and is unconstitutional.

One wrinkle to this argument is that the executive order applies to some people not yet subject to the jurisdiction of the United States, including people applying for admission into the U.S. who are not yet legal permanent residents. And in those situations, courts have held that Congress, with the president as Chief Law Enforcement Officer, has plenary, or absolute power to control admissibility. National quotas and preferences for persecuted religious minorities from other nations have been explained under that plenary authority and under the argument that peoples from outside the U.S. have no rights under the Constitution until they are subject to its laws. This is not a fully tested theory of “plenary power,” however, and the Supreme Court has never upheld a blatantly discriminatory immigration policy such as this one when it would otherwise be unconstitutional if enacted upon persons in the United States.

In addition to the constitutional argument under the First Amendment, there is also a 1965 congressional law that bans discrimination in immigrant visas on the basis of race, nationality, sex, and place of birth or residence. Arguably, the executive order violates this law as well as the spirit of the 1965 law, which was to forbid racism and nationalism in immigration policy. The president might say this is not a ban but a suspension while new vetting procedures are put in place, but it is hard to read the executive order that way. Refugees from Syria, for example, are wholesale banned until further notice.

Meltsner: Incompetence is not the same as unconstitutionality. In the past, the federal courts have given the executive branch enormous latitude in this area, but if the policy is framed as turning away immigrants, visitors, or refugees on the basis of religion, there is reason to think the courts may strike it down. Trump’s talk about favoring Christians supports the Establishment Clause argument.

What do you think might happen if this order were to be challenged in the Supreme Court today?

Silbey: If the court were to adhere to its precedent, such as Larsen v. Valente, in 1982, which said that “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another,” then the executive order would be invalid at least as to those legal permanent residents and those subject to the protection of the Constitution.

Meltsner: We are a long way from a SCOTUS decision on this matter. Indeed we don’t even know what the court that hears such a case will look like.

High-ranking government officials—including Gen. John F. Kelly, secretary of homeland security—as well as Customs and Border Protection officers were not informed of Trump’s executive order until just before, or even after, it was signed. There is speculation that the Office of Legal Counsel was not called to review the order, nor was Kelly’s department. What sorts of checks and balances are in place around drafting and executing an executive order?

Meltsner: There is certainly a strong impression that the executive order was rushed into place without any discussion with many of the affected officials and agencies. This is the sort of departure from accepted practice that we have come to expect from the new administration and it is likely to happen again. Failure to consult when dealing with a large organization like the federal government is a recipe for the sort of chaos that resulted here.

Early Sunday morning, two federal judges in Boston granted a seven-day restraining order against Trump’s executive order. Despite this, some immigrants were still detained at Logan International Airport later that day. How much power do federal courts have in decisions related to executive orders? What recourse do people have if the court’s orders aren’t followed?

Silbey: One could file a contempt order and have the federal marshals enforce that order. That pits one police system for the federal government (the federal judicial marshals serving the Article III courts) against another (the Customs Border and Patrol). I’d say that’s a scary situation.

Meltsner: The most troubling long-term consequence of these events is the apparent failure of certain officials to obey court orders. We can only hope this was a result of confusion rather than intentional disregard. While the courts ultimately have a contempt power, it is not easily employed in a situation like this. What’s at stake here is the rule of law itself.

When it was signed, the executive order initially banned even green card holders from the seven countries identified, though the White House soon pulled back on this aspect of the order. As noted, those who would be responsible for the implementation of the order were given little to no advance notice of its framework. What’s the legal process for altering the scope of an executive order?

Meltsner: As the story of this order reveals, the president is unfettered in signing what he wants to sign and if he finds the consequences not to his liking can either spin a more benign interpretation or sign another order.

Silbey: The process can include a court (as we saw over the weekend) enjoining part of the order, the executive withdrawing part of it or issuing a written amendment, or, as we saw with White House Chief of Staff Reince Priebus on Sunday, making statements of amendments to future enforcement from the White House as an agent of the executive branch. There is some concern that such news-interview statements are hardly directives to the Department of Homeland Security or Customs and Border Patrol of the kind that one needs to see for consistent and efficient implementation of executive policy, however. Usually detailed implementation of executive orders comes in the form of regulations drafted by executive departments issued to the various administrative agencies.