A Trifecta of Illegitimacy

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Category: Federal Law & Legal System, Human Rights, Immigration Law, President & Executive Branch, Public, Religion & Law
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Let’s review a few basics about the Rule of Law in the United States of America.  First of all, the Executive Branch (in the form of the President) is given the power to enforce federal law by our United States Constitution.  In contrast, the Legislative Branch (in the form of the Congress) is given the power to make the law.  So, for example, if the Legislative Branch has passed a statute that grants all refugees seeking political asylum the absolute right to file such a claim when they reach our nation’s borders (which it has, in the Refugee Act of 1980), then the President cannot simply declare that right to be “suspended” and instruct officers with the Customs and Border Protection office to turn such refugees away when they arrive at U.S. airports or other ports of entry.

As a side note, none of the Executive Orders or Presidential Directives issued by President Obama relating to the enforcement of the immigration laws directly contravened explicit language contained in a statute passed by Congress.  The legal debate over the unilateral actions taken by President Obama concerned the scope of the President’s discretion to choose how to enforce the law and how to prioritize deportations.  They did not concern whether the President had the authority to order government officials to ignore explicit commands contained in the law.  The Order by President Trump to “suspend” the entry of refugees from specified countries without complying with the provisions required under the Refugee Act of 1980 is in direct conflict with an Act of Congress.

Second, the United States has signed treaties that obligate us to treat persons who are “refugees” in certain ways.  In particular, our nation has signed the U.N. Convention on Refugees, which forbids nations to return refugees to countries where it is more likely than not that their lives would be in danger on account of their race, religion, nationality, political opinion or membership in a particular social group (a mandatory form of relief technically known as “withholding of removal”).  In addition, the United States has signed the U.N. Convention Against Torture, which forbids nations to return any person arriving at their border to a country where they will be tortured.  There are no exceptions to these obligations.  And while international law is not self-executing, meaning that international law does not automatically become part of U.S. law, in both instances Congress has passed legislation making these obligations a part of domestic U.S. Law.

Third, the United States Constitution, in its 14th Amendment, commands that no person shall be denied the equal protection of the laws.  This command applies to both the governments of the 50 states and to the federal government.  There is no doubt that lawful permanent residents of the United States — persons legally entitled to reside in the United States but who have not become citizens — enjoy the same right of Equal Protection under the law as Citizens.  Supreme Court precedent has recognized that there may be times when the federal government may take account of the fact of alienage and adopt a uniform rule for all aliens that is different from the rule adopted for all citizens.  But it is a different matter for the federal government to adopt the discriminatory treatment of one group of permanent resident aliens versus another group of permanent resident aliens on the basis of race, nationality or religion.  For the federal government to treat some legal permanent residents differently than other legal permanent residents solely on the basis of their religion would be a clear denial of equal protection under the law.

President Trump issued an Executive Order yesterday which purports to bar Syrian refugees from Syria from entering the United States indefinitely and which also suspends all refugee resettlement in the U.S. for 120 days as the administration reviews its vetting process. It also imposes a 90-day ban on people from seven Muslim-majority countries: Iran, Iraq, Syria, Yemen, Libya, Sudan and Somalia.  This order does not permit the affected refugees to request asylum when they arrive at the U.S. port of entry and there are news reports of people being forced to return to the country from whence they came.  Spokespersons for the Trump Administration have also stated that the 90 day ban on entry applies to permanent resident aliens from the identified countries.

The American Civil Liberties Union has filed a lawsuit challenging this Executive Order.  The swift condemnation of the Order is unsurprising, and a judicial injunction partially halting the implementation of the Executive Order was issued mere moments ago.  After all, President Trump’s Executive Order is contrary to congressional statutes, international law and the United States Constitution.  As such, it achieves a rare trifecta of illegitimacy.

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36 Responses to “A Trifecta of Illegitimacy”

  1. genevieve schwandt Says:

    With the pen Trump put in motion he unleashed something that will devastate our country, other countries will turn their backs to us, this has to stop NOW!

  2. Edward A. Fallone Says:

    “Before the President issued the order, the White House did not seek the legal guidance of the Office of Legal Counsel, the Justice Department office that interprets the law for the executive branch.”

    http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html

  3. Patricia Sadowski Says:

    Somewhere in the recesses of my mind I expected that this Democracy was more powerful than any one person or any ONE of the three branches of government, alone. I was not completely confident, just had a feeling, but I am feeling more optimistic now. I will continue to pay close attention. Our American system of Democracy rocks! The rule of law in this country gives us a stability that is comforting. Happy day! I do know it is not over but, still, a wonderful first response to a terrible move by this President.

  4. Thank you. That was highly informative. We need you. And your voice of reason.

  5. Gretchen Harris Says:

    No kidding!

  6. Rachel Rogstad Says:

    Thanks for sharing and making this clear to me, it needs to be shared to my family and friends.

  7. So what?

    You seem to be under the misapprehension that just because some presidential action is illegal and unconstitutional, it won’t be enforced anyway.

    Who will enforce a federal court’s order for an immediate halt to the ban?

    The only sanction available against lawless presidential action is impeachment, and that ain’t gonna happen.

    I’m Australian. The view from the outside is that the facade has just cracked, and laws that can’t be enforced are de facto nullities. The assumption that “he couldn’t do that…,” has been shown to be false. He has enough support to disregard oaths, conventions and polite agreements to uphold the law, and enough sycophants in his entourage to ensure he gets away with it.

    Your system was broken long ago, and only held together by tradition. Trump ignores tradition. You’re up the creek without a paddle, I’m afraid, and so to varying extents are the rest of us.

  8. Your trifecta falls apart at the statement: “For the federal government to treat some legal permanent residents differently than other legal permanent residents solely on the basis of their religion would be a clear denial of equal protection under the law.”

    Islam is not a religion, it is a political ideology that along with Sharia Law defines how one should look, act and function with a society. Islam is not consistent with freedom and liberty, rather, it commands submission (the definition of Islam). Islam does not advocate for equal protection under our (American) laws or ideals. Islam is a cancer and should be prevented from entering our borders.

  9. The ban also excludes majority-Muslim nations where Trump has business interests (e.g., Turkey, United Arab Emirates, and Saudi Arabia). In fact, it is from those places that known terrorists–like the 9/11 terrorists–have come.
    http://www.npr.org/2017/01/28/512199324/countries-listed-on-trumps-refugee-ban-dont-include-those-he-has-business-with

  10. Go get him, ACLU!!

  11. Thank you, this is very helpful.

  12. Patricia J Anderson Says:

    Thank God Trump is finally being challenged. It seems to me that most of his executive orders are illegal. The President cannot just change the law because he doesn’t agree with it. He is to enforce the law, not make it. He must learn the US is a democracy, not a dictatorship. Perhaps he ran for the wrong office in the wrong country.

  13. Charlie Westin Says:

    Where does the Obama administration fit into this, with the 6-month ban on Iraqi refugees announced in 2011?

  14. Zachary J. Baeseman Says:

    The problem is all the republicans are bought and paid for by special interests (democrats too). They will not stand up to trump because their eyes are too big for all the things they could deliver to those special interests during this administration. Our government is corrupt and completely broken on federal and state levels.

  15. What about Obama’s NUMEROUS Executive Orders, many of them against the law. He got away with murder!

  16. As I predicted…

    As the night wore on, it became increasingly clear that CBP was defying Brinkema’s ruling. Lawyers concluded that that meant someone was in contempt of court. The judge could theoretically send in federal law enforcement officers to force CBP to let the lawyers meet with the detainees. But sending in the U.S. Marshals—who are part of the Department of Justice—to take on Customs and Border Patrol—which is part of the Department of Homeland Security—would have been a bureaucratic clash of the titans. And, like everything else that night, it would have been unprecedented. It didn’t happen.

    Asked by The Daily Beast what CBP officers had told him about why they wouldn’t let detainees see their lawyers.

    “They told me nothing, and it was unacceptable,” he said. “I believe it’s a Constitutional crisis, where the executive branch is not abiding by the law.”

    A source familiar with Booker’s exchange with CBP officials told The Daily Beast that officials with the agency refused to see him face to face. Instead, Booker wrote questions on a piece of paper which he handed to police officers, and those officers gave the paper—along with a copy of Brinkema’s ruling—to CBP officials. Those CBP officials then wrote out their answers to the senator’s questions, according to the source. The source described it as a half-written, half-spoken game of telephone.

    An executive agency defying the ruling of a federal judge, and a U.S. senator trying—unsuccessfully—to make that agency comply.

    http://www.thedailybeast.com/articles/2017/01/29/trump-s-border-patrol-defies-judge-u-s-senator-at-dulles-airport-at-his-first-constitutional-crisis-unfolds.html

    YMMV, and some Border Patrol offices appear to be slowly complying with the court order.

  17. David Renaud Says:

    The President is not violating the law he is mearly protecting us from terror if the refugees are not vetted , he is not keeping anybody out unless they are not fit , I don’t know about your platform but are you for life , don’t you read about suscide bomer blowing up Weddings and just killing people just for the killing so the bommer can get to heave with 70 virgins also do you know the women have no rights it thoise countries and they have all the freedoms here in the USA , I say let them come if they respect our freedoms – love our country -and become a citizen and work hard for the dream . as for the NY times it has published fake news all during the campaign so what kind of paper is that.

  18. Ellen Reynolds Says:

    Why hasn’t anyone stopped him yet??? I don’t get how he does these things that are illegal, and they continue! Whose role is it to charge him?

  19. Raymond Peltier Says:

    Trump has created a constitutional crisis, which he defends, not with reason or legal argument, bbut with bravado. This the act of an ignoramus.

  20. Sarah Gordee Says:

    Thank you – this is wonderful. Clear, succinct summaries of the issues from obviously credible sources are a great way to transmit the facts to the masses with tweet-length educational attention spans. Perhaps an idea to continue?

  21. Thanks so much for your nihilistic response. Do you think we are happy with this? Our country worked just fine until January 20th, while our wonderful President Obama was in charge. We now have a madman making insane decisions that put our country at serious risk. So please keep your mean comments about our country being broken to yourself. Oh yes, and stay in Australia. We don’t want you if that’s the way you feel about America.

  22. Can you please help me understand how T’s executive orders can be instantly enacted as if they were decrees? As Commander in Chief, does he have executive authority over the NSA? Has the chain of command been accelerated or bypassed or something else?

  23. Jeff Nielsen Says:

    Because Trump alone has a brilliant mind. He is smarter than all the generals. Has a plan, a secret plan, the BEST plan, but no one can know what the plan is. He ALONE can make America great again… This one I agree with! He needs to go live in Russia with his hero, putin….

  24. Okay, so you are saying that his order is invalid but it didn’t stop him from doing it, setting everything in motion, which means the checks and balances don’t work if the president goes against them. My question………what happens after he crosses the line? I can’t break laws. But can he and won’t he continue to issue orders if there is no repercussions?

  25. The spin on Obama is disingenuous. Choosing to not enforce the law is, in essence, directly changing it. Let’s b honest for a change. It would be refreshing.

  26. I had an entertaining exchange concerning the Executive Order with Rick Esenberg this morning on the Joy Cardin Show on Wisconsin Public Radio. Rick stated his opinion that President Trump’s Order was “probably constitutional” although he was unclear in his comments whether his conclusion was based on some sort of inherent presidential power in national security affairs or on the argument that the Order fell within the scope of authority delegated to the President under Section 212(f). He also stated his opinion that the Order was “probably unconstitutional at the margins” without managing to identify what those margins are. In any event, this statement is a bit like asserting that your wife is “a little bit pregnant.” In my view, as the debate over the Executive Order’s legality continues to rage, the main legal issue increasingly seems to come down to one question: whether the language of the Executive Order can be interpreted in such a way that its effect is limited to areas within the statutory delegation of authority under Section 212(f), or, alternatively, whether the Order’s language is so vague and far-reaching that the entire Order must be struck down as unconstitutional. I predict that most federal judges will arrive at the latter conclusion.

    For more detail please see my subsequent post “President Trump’s Executive Order is Still Unlawful”:

    http://law.marquette.edu/facultyblog/2017/01/29/president-trumps-executive-order-is-still-unlawful/

  27. Julie mitchell Says:

    Don’t you think the ban in2011 was because of 9 11 for our protection I think this is different its a little strange he doesn’t ban the countries he has business. He is out for himself it will all come out in the wash.

  28. Hezakiah Levinson Says:

    There are no international laws that say a country can’t say who can or can’t enter their borders. They should try walking across the border on Canada without a passport LOL.As far as the Trump EO,it is according to US law;a law passed by Congress and signed by Obama.The Refugee Act of 1980 is not about stopping possible terrorists or enemies entering the country and is modified as to what is to be done about “refugees” from terror supporting countries by Section 217(a) of the Immigration and Nationality Act (8 U.S.C. 1187(a)), as amended by this Act, is further amended by adding at the end the following:

    “(12) NOT PRESENT IN IRAQ, SYRIA, OR ANY OTHER COUNTRY OR AREA OF CONCERN.—

    “(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C)—

    “(i) the alien has not been present, at any time on or after March 1, 2011—

    “(I) in Iraq or Syria;

    “(II) in a country that is designated by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; orH.R.158 – Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015…..https://www.congress.gov/…/114th…/house-bill/158/text

  29. Hezakiah S Levinson Says:

    There should be no argument at all calling the restriction a ban.people in seven Muslim dominated countries can not come into the US under the EO signed by Trump.It is not a Muslim ban as the Liberal paranoid press and others are claiming.The NY Times is even claiming that Saudi Arabia, Lebanon, Turkey, the UAE, Egypt and Indonesia are not on the list because Trump’s companies do business within their borders.If this was a “Muslim ban”, then there would be a lot more countries listed than the seven.There are between 49 and 51 Muslim-majority countries in the world, according to estimates from 2010 where Muslims comprise around 50 percent of the population.Since 50.01 percent is a majority but 49.99 is not, a slight discrepancy in population estimates can result in a country not being counted as Muslim-majority. Population percentages are frequently estimates, and different organizations can produce slightly different estimates. According to Pew Research in 2010, Nigeria has a Muslim population of 47.9 percent. However, others consider Nigeria a Muslim-majority country.If it was a Muslim ban with seven banned and there are six Trump does business in,why aren’t the other thirty-six Muslim majority countries banned?https://www.reference.com/world-view/many-muslim-countries-world-dd8fd01a7181d54#

  30. There was a question above about how this relates to the Obama administration’s ban on Iraqi refugees in 2011. The link below will clarify what that was about and how it is different from this EO

    http://www.vox.com/world/2017/1/31/14444862/obama-refugee-ban-2011

  31. Federal immigration law also includes Section 1182(f), which states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” (emphasis added).

  32. William Galston, writing in the Wall Street Journal yesterday, shares my views under the headline “Nothing Redeems Trump’s Travel Ban.” The pull-out quote states “[i]t probably violates the Constitution and statutes, and it’s bad public policy.” The full article is linked below (behind a subscribers only firewall):

    https://www.wsj.com/articles/nothing-redeems-trumps-travel-ban-1485907087

  33. Today a federal judge in Washington State issued a nationwide injunction halting Trump’s Executive Order:

    “In his ruling, [Judge] Robart said Washington had met the high burden to justify a restraining order by showing that Trump’s order was causing ‘immediate and irreparable injury,’ and that the state had a substantial likelihood of winning its underlying lawsuit challenging the constitutionality of the travel ban.”

    http://www.seattletimes.com/seattle-news/politics/federal-judge-in-seattle-halts-trumps-immigration-order/

  34. Wonderful picture..

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