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.