Trump Challenges The Limits Of Executive Power

When Donald Trump learned that a federal district court had refused to reinstate his Muslim ban last week, he tweeted in all caps, "SEE YOU IN COURT!" Aside from this strange reaction to a court decision, Trump's angry outburst raises the question: Is the president allowed to have whatever he wants? To better understand the limits of his power, let's look back at his attempt to unilaterally impose the Muslim ban, and the ways in which it has been blocked so far.

A week after he was inaugurated, Trump created a constitutional showdown by issuing his executive order prohibiting nationals from seven Muslim-majority countries from entering the United States.

People from Iraq, Iran, Libya, Syria, Somalia, Yemen and Sudan were banned from the US for 90 days. The executive order also indefinitely forbade Syrian refugees, even those granted visas, from entry into the US. And it suspended the resettlement of all refugees for 120 days.

Although the September 11, 2001, attacks were cited as a rationale for the ban, none of the 9/11 hijackers came from the seven countries covered by the executive order. In fact, 15 of the 19 men were from Saudi Arabia, which didn't make Trump's no-entry list. Moreover, no one from the seven listed countries has mounted a fatal terrorist attack in the United States. (This is not to say that any countries should be added to the list -- they absolutely should not -- but even within Trump's own official logic, the ban does not make sense.)

The states of Washington and Minnesota sued Trump in federal District Court in Seattle. US District Judge James Robart issued a temporary restraining order. It halted the executive order's ban on citizens of the seven countries from entering the US. Robart also halted the executive order's limitations on accepting refugees, including any action that "purports to prioritize the refugee claims of certain religious minorities."

Trump argued in court that the exercise of his presidential power to control immigration and protect national security cannot be reviewed by any court. But four federal court judges disagreed, schooling Trump about the separation of powers.

Robart found the states met their burden of showing they face "immediate and irreparable injury" and he concluded, "The executive order adversely affects the states' residents in areas of employment, education, business, family relations and freedom to travel. These harms are significant and ongoing." Robart's temporary restraining order applied nationwide.

After Trump appealed Robart's decision to the Ninth Circuit Court of Appeals, a panel of three judges (two Democrats and one Republican) unanimously refused to reinstitute the executive order.

Presidential Power Over Immigration and National Security Is Not Unlimited

The three-judge panel disagreed with Trump, who, according to the panel, had essentially made the argument that his "decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections."

"Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security," the panel wrote, "neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution."

Indeed, the panel stated, "the Government's 'authority and expertise in [such] matters do not automatically trump the Court's own obligation to secure the protection that the Constitution grants to individuals,' even in times of war," quotingHolder v. Humanitarian Law Project.

The panel also quoted a 1942 Supreme Court decision called Ex parte Quirin, in which the high court stated that courts have a duty "in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty."

In Youngstown Sheet and Tube Co. v. Sawyer, the Supreme Court held that the powers of the president are not unlimited, even in wartime. In that seminal case, the Department of Justice (DOJ) had argued in the lower courts that judges could not review President Truman's decision to seize the steel mills for the war effort.

"The press reported Truman's argument in the lower courts as, essentially, 'Truman claims to be above the law,'" Kenneth Vandevelde, professor at Thomas Jefferson School of Law, noted. "There was a strong backlash against that claim, and the Justice Department backed off that argument before the Supreme Court."

William Rehnquist was a law clerk for Justice Robert Jackson, who wrote the famous concurring opinion in Youngstown. When he later became Chief Justice, Rehnquist "offered his view that Truman's argument in the lower courts turned the Supreme Court against him. Rehnquist believed that the Court did not want to appear to endorse the view that the President is above the law," Vandevelde added.

The three-judge appellate panel in Washington v. Trump rejected the president's claim that his power to control immigration and protect national security is unreviewable. Moreover, Trump's characterization of Robart as a "so-called judge" could not have escaped the panel's notice.

The panel cited Boumediene v. Bush, in which the Supreme Court held that the Bush administration could not deny due process to Guantnamo detainees simply by locating its prison outside the United States. Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantnamo, the United States exercises complete jurisdiction and control over its naval base, and thus the Constitution protects the detainees there.

In Boumediene, Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a US military base in a country that retained formal sovereignty over the area.

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" He wrote, "Even when the United States acts outside its borders, its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

The appellate panel in the Trump case refused to defer to the president's assertion that people from the seven countries posed a threat to national security. "The government has pointed to no evidence," the judges wrote, "that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States."

Trump's Case Is Not Likely to Succeed on Its Merits

In denying the Trump administration's motion to reinstitute the executive order, the appellate panel held the government had "not shown that it is likely to succeed on appeal on its arguments about, at least, the States' Due Process Clause claim," adding, "we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims." The Fifth Amendment's Due Process Clause forbids the government from depriving an individual of life, liberty or property without due process of law. That means the government must provide notice and an opportunity to respond before restricting an individual's ability to travel.

The appellate panel reiterated the well-established principle that procedural due process protections are not limited to US citizens but rather extend to all persons in the United States. They include undocumented immigrants and "certain aliens attempting to reenter the United States after travelling abroad."

Moreover, the panel cited Kerry v. Din for the proposition that "[US] citizens who have an interest in specific non-citizens' ability to travel to the United States" also enjoy due process rights. This would include family members of non-citizens attempting to travel to the US, who've been blocked by the ban.

The First Amendment prohibits any "law respecting an establishment of religion." This means a law that favors one religion over another violates the Establishment Clause. The Equal Protection Clause also prohibits the government from religious discrimination.

The appellate panel wrote that "circumstantial evidence of intent ... may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose." Indeed, the panel cited "numerous statements by the President about his intent to implement a 'Muslim ban' as well as evidence [the States] claim suggests that the Executive Order was intended to be that ban."

Trump Puts Judges on Notice

After Robart issued his decision, Trump tweeted, "The judge opens up our country to potential terrorists and others that do not have our best interests at heart. Bad people are very happy." In another tweet, Trump wrote, "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!"

The late Justice Scalia engaged in similar fearmongering. In his Boumediene dissent, Scalia sounded the alarm that the Court's opinion "will almost certainly cause more Americans to be killed." The Wall St. Journal editorialized, "We can say with confident horror that more Americans are likely to die as a result."

But naked fearmongering did not convince the court in Boumediene. And it did not sway the appellate panel in the Trump case.

Trump may appeal the panel decision, and his minions may draft a new executive order in an attempt to circumvent the legal infirmities of his first one. But there is no indication the administration has learned what the constitutional separation of powers really means.

White House senior policy advisor Stephen Miller, who helped draft Trump's legally defective executive order, appeared on the Sunday morning talk shows on February 12 to defend his handiwork. Miller called the decision to halt the operation of the executive order a "judicial usurpation of power," claiming the judiciary was acting like "a supreme branch of government."

Miller's boss was pleased. Trump tweeted, "Congratulations Stephen Miller -- on representing me this morning on the various Sunday morning shows. Great job!"

Yet the responsibility of the courts to check the president's authority has been a core part of the US governmental framework since its inception. The founders, reacting against the abuses of King George III, understood the dangers of unchecked executive power. That's why they wrote three branches of government into the Constitution. The Supreme Court has long held it is the role of the judiciary to stop the president when he acts unlawfully.

The judges were well aware of the chaos unleashed by the executive order. And they couldn't miss the protests of thousands of people who took to the streets and the airports to oppose Trump's inhumane and unnecessary policy.

Trump will surely continue to overreach as he pursues his mean-spirited agenda. The courts should persist in checking Trump's assertions of unbridled executive power.

Still, it is up to "We the People" to remain more vigilant than ever as Trump tries to run roughshod over the Constitution and our human rights.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild and deputy secretary general of the International Association of Democratic Lawyers. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse ; Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues . Follow her on Twitter: @MarjorieCohn .

Copyright Truthout . Reprinted with permission.