Trump’s Exclusion Order Can Easily Be Made Constitutional -- But It Remains Stupid

Let’s imagine someone in the White House talks to an actual lawyer.

In all the noise and confusion surrounding the constitutional and legal status of Trump’s Executive Order excluding persons from seven majority-Muslim countries from the United States, there are a few crucial points that are frequently overlooked.

The Order as written is hopeless, but that’s only because it appears to have been drafted by someone who never took a class in constitutional law or legal drafting. Here’s a question: in the phrase “from countries referred to” (sec. 3(c) ) what does “from” mean? Born in? A citizen of? Got on the plane at? Here’s another question: what does “in transit” mean? Nobody has any idea.

But the really monumental error in drafting—and it was almost certainly an error rather than deliberate—was the failure to define its scope. Certainly, for example, U.S. citizens cannot be prevented from entering the United States on this basis. Almost certainly the same is true of holders of green cards. The administration has already started acknowledging these points by saying the exclusion will not apply to green card holders; the citizen question will arise in the case of dual citizens, and I have no doubt the administration will walk that one back as well. But the problem is that walking these things back at the enforcement stage does not necessarily fix the constitutional problem. The remaining message is “we are not applying this rule to US citizens, green card holders, military translators…but we could.” That’s why this Order could most easily be found unconstitutional; because as written it unconstitutionally limits the rights of US citizens.

So all right, let’s imagine that happens. Alternatively let’s imagine someone in the White House talks to an actual lawyer. At that point the Order is amended or reissued with a clause that specifies that it does not apply to US citizens or lawful permanent residents. What then?

At that point, most of the constitutional claims go out the window. Constitutional rights like due process and equal protections apply to all persons in the United States, citizens or not. Even persons in the U.S. illegally are entitled to due process (Zadvydas v. Davis, (2001)). But! Non-citizens outside the United States have no such protections. And at an airport or port, you’re not actually “in the United States” until you pass through customs. That’s why you don’t need a visa every time you transit through a foreign city (in Moscow they sometimes make you pay for a transit visa if you have to take a bus from one airport to the other – I don’t know whether we do that in New York, but we could!) The case of Haitians trying to reach the United States provides the perfect illustration. Once they land on the beach, they are in the U.S. and are protected by the Constitution; that’s why the Clinton administration ordered the Coast Guard to turn them back while they were still on the high seas. The Supreme Court upheld that action, ruling that neither the Constitution nor federal law limits the actions of the Executive with respect to non-citizens outside U.S. territory. Sale v Haitian Centers Council (1993). So no, non-citizens who have not yet cleared customs are not entitled to equal protection, or due process, or First Amendment rights, or much of anything else.

The ACLU’s legal briefs that I have seen don’t address this issue; they appear to assume the Order applied to citizens, or they purport to assert claims on behalf of U.S. citizens or residents on the grounds that immediate family members are affected by the order, which is a stretch as a theory of either standing or remedy. A couple of federal judges have played a tricky game with the word “removal”, which in immigration law applies only to persons already in the United States (as opposed to “exclusion”). I have not yet seen any serious argument that this or any future Supreme Court is likely to give constitutional guarantees extraterritorial application for non-citizens any time in the near future.

What about the Establishment Clause? That one is potentially different. The Establishment Clause does not so much bestow an individual right as it declares a limitation on the way the government can behave. One of the tests under the Establishment Clause is “secular purpose”; so if the purpose of the Order is to exclude Muslims from the United States, that might be a violation. The problem is that while there is plenty of evidence that in his heart of hearts Trump would like to exclude Muslims from the U.S., it is hard to show that was the purpose of this particular order given that the vast majority of the world’s Muslims remain unaffected.

Then there are the legal claims. The President says he is acting under the authority of federal law; that is, he is exercising authority delegated by Congress. That’s an important point! It means that Congress could repeal or amend this Executive Order tomorrow. Or Congress could amend the relevant law to make sure there are no legal problems. Even if Congress does not act, analyzing the legal (as opposed to constitutional) claims does not suggest any very strong attacks, at least none that could not be fixed with trivial changes. In the same case about Haitians I referenced above there is an extended discussion of federal law concerning the right of asylum-seekers to apply for refugee status. That’s a federal law that implements our obligations under international treaties. Basically, the Supreme Court gave the Clinton administration a pass, and the same outcome would be likely in this case.

So the Order is could easily be made both constitutional and legal barring direct challenge from Congress or a dramatic change in the Supreme Court doctrine, neither of which are likely. Just how stupid is this order? The mind boggles. Take the preference for claims of religious persecution by adherents of minority religions. If that were applied to Syria, it would mean that pro-Assad Alawites had a better chance of entry than the groups we have been supporting. Alevis in Turkey, Ahmedis in Pakistan, Uigurs in China, Muslems in Israel (and the territories it occupies?)…all of these groups have just been told they will have preferential claims going forward. And of course that’s leaving aside the PR nightmare in the Muslim world, the backlash from our allies, the complete turmoil that has been created within US agencies.

But none of this, none of this, gets to the real evil of the thing.

It is possible that we are all being massively distracted. The 90-day limitation on entry, the 120-day ban on refugees, these are merely first steps. Getting past these controversies by resolving legal issues, redrafting, or taking the necessary political hit could provide the administration with a ratchet to implement the part they really care about: the future countries list. Section 3(b) of the Order instructs the Secretary of State to come up with a list of information required from all countries before we will admit their citizens (or persons “from” there—back to the earlier question). Section 3(d) says that all foreign government that do not already supply such information will be given 60 days to comply. And Section (e) says that at the end of that period—90 days total from the issuance of the Order—the President will issue a “proclamation that would prohibit the entry of foreign nationals…from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs”. That’s not a temporary measure, that’s a permanent ban until the US government decides that compliance has occurred. And that, in turn, is a decision for which there are no standards, no due process requirements, and no limits unless the Republican Congress decides to impose them. (Legal observers take note: all of a sudden, Neil Gorsuch’s views on agency discretion do not appear to be secondary concerns.)

Was that the goal all along? Guiiani says the President asked him about finding a way to make the Muslim ban legal. That would be the way to do it. List a whole slew of countries as out of compliance with the information requests, and simply happen to include all countries with majority Muslim populations.

That’s the constitutional ratchet. It is exactly the strategy that the US government followed in getting the Supreme Court to approve the internment of Japanese-Americans in World War II: first it was a curfew, then it was exclusion, then it was exclusion with nowhere to go except internment camps. Which raises the possibility that the stupidity and ineptitude of the drafting is a distraction from the real goal.

Is that what’s going on here? This may be nowhere near to being over. The real questions are still 81 days away.