This was originally posted on Urban Lawyers, please follow this blog as I will be posting there as well.
Donald Trump has been all over headlines since the moment he began holding the office of POTUS (and before that even). There has been concern that President Trump could really implement some of the more controversial policies he professed during his campaign. Looking towards his executive orders, that concern seems justified, but just how bad can President Trump be? He does seem to be spearheading a challenge against abstract rights, but does he have the legal right to implement such policies? Even if he does, would President Trump be practically/politically be able to implement some of his more controversial policies?
As alluded to, President Trump has not been hesitant in his use of executive orders, with 11 published in just over two weeks (Jan 30 – Feb 14). To give an idea as to how unusual this is, if he continues at this rate, he would be issuing 286 executive orders annually, a rate which would be second only to Franklin D Roosevelt (at 290 per year), and would nearly be 10 times that of President Obama. As many of you will know, executive orders are issued by a president and establish primary legislation whilst circumventing Congress. The separation of powers establishes three law making bodies: the executive, the judiciary, and the Legislature. The legislature, not the executive, is established as the primary lawmaking body in the U.S. Thus, the regular use of executive orders indicates a lack of respect for Congress, and, in extension, the principle of separation of powers. Furthermore, the content of President Trump’s executive orders only makes things worse; they are not minor modifications, they are attempts to establish major changes to U.S. law. The obvious examples are EO 13767 (the ‘wall’ order), EO 13768 (the mass deportation order), and of course, EO 13769 (the ‘Muslim ban’ order). This goes further to affront Congress’ authority as the legislature, and indicates a will within the Trump administration to act as a singular lawmaking body, rather than respect the purpose of separation of powers; to provide checks on government and to prevent an arbitrary government.
The content of these orders further indicates a lack of respect for civil rights established within the U.S. The previously mentioned executive orders clearly show little respect for the rights of minority groups. EO 13768 shows a disregard for the well-being of immigrants. What is particularly concerning about this order is that an immigrant who is otherwise innocent can be removed if they ‘pose a risk’ according to an immigration officer. Under this law, immigrants could be deported even if they have not committed any crimes, almost implying that such immigrants are not provided the presumption of innocence. The Order further makes no reference to a deportable immigrant’s safety in their country of destination, only that ‘diplomatic efforts’ will be made if countries refuse to accept nationals. Under the Order, no efforts would be necessary if a deportable immigrant would be at risk in their domestic country. This does not show great concern for the human rights of immigrants. The infamous ‘Muslim ban’ EO 13769 does not show great concern for human rights either, closing the door on refugees from some of the most war-torn countries (including Iraq and Syria). The converse argument concerning this particular Order is that the list of countries is simply one of high-risk countries used by the Obama administration. It is thus worth noting that whilst the Obama administration did use this list to restrict travel, they restricted travel to those who traveled to one of these countries after 2011. They did not necessarily mean to target nationals, instead meaning to target foreign fighters. Furthermore, since 9/11, no persons from the listed countries have been involved in killings on American soil. Therefore, this policy seems short sighted because of its inability to differentiate between people willingly traveling to these countries, and victims desperately trying to escape (unlike Obama’s aforementioned policy). The idea of restricting people’s movement because they are from a specific geographic region regardless of most other circumstances is another great affront to abstract rights. These disregards therefore must, it seems, extend to a disregard of the rule of law, which protects fundamental rights and equality under the law. Consequently, as we will now see, the Trump administration has already been subject to judicial challenges.
But exactly how much progress can President Trump make with this standpoint? Does he have a legal right to disregard one of the three bodies of the Federal Government of the United States, when convenient? Does he have a legal right to disregard human rights? The other, so far unmentioned body of federal government, the judiciary begs to differ with President Trump’s justifications, most famously in Washington v Trump. In this case, Judge James L. Robart found that the ‘Muslim ban’ violated four amendments to the US constitution: the First, Fifth, Tenth, and the Fourteenth. Namely, amongst other things, Judge Robart found that this EO violated the requirement of equal protection under the law, finding that the Trump administration showed ‘discriminatory treatment based on their country of origin and/or religion, without lawful justification’. Judge Robart additionally reaffirmed the Tenth Amendment, showing that the Federal Government only has the legal rights delegated to it by the Constitution, and since this EO was in violation of the constitution, it simply could not be legitimate. This is however not the sole example of cases against President Trump. In City of Chelsea v Trump, an ongoing case, the plaintiffs have submitted that EO 136768 violates the Tenth Amendment, and what is particularly interesting is the application of the Tenth Amendment to this particular case (where the plaintiffs believe the Government is overreaching in its attempt to influence local authority):
‘118. The Tenth Amendment prohibits the federal government from commandeering state officials to execute federal policy, in order to ensure that “state governments remain responsive to the local electorate’s preferences” and “state officials remain accountable to the people.” New York, 505 U.S. at 168.’
Once again, we see the resurfacing of the issue of checks on Government (or accountability). The devolution of power exhibited in the US legal structure helps to provide such checks, and is also evident in a further case, City and County of San Francisco v Trump (for commentary on this case, see here). Simply put, it seems that there are too many legal hurdles in the way for President Trump to act in the way he wants. Whilst he may try to hide under ‘national security’, this only works to an extent and, as we have seen, judges are prepared to ignore this justification if there are violations to the Constitution.
There seems to be a sound legal basis to prevent attempts at arbitrary government. The Constitution provides legal limits not only to the executive’s power, but to federal government’s in its entirety, and the judiciary ensures that these legal limits stay in place. This may limit President Trump’s progress if he continues to act in the way he does. In other words, President Trump may choose to disrespect the rule of law and separation of powers, but if he wishes to accomplish anything, he cannot ignore them.