President Trump’s Executive Order is Still Unlawful

Yesterday, in a post on this Blog, I called President Trump’s Executive Order of January 27, 2017, “a rare trifecta of illegitimacy.”  The rollout of the Executive Order has been confused, and its implementation uneven.  Thus far, most Republican members of Congress have been silent on the legality of the Executive Order, even those Republicans who criticized Trump’s proposal to ban Muslim immigration during the presidential primaries.  Notably, the Executive Order has received only tepid support from Senate Majority Leader Mitch McConnell.

The Executive Order purports to “suspend entry” of all aliens into the United States who are nationals of specified countries.  Media accounts describing the implementation of the Executive Order have focused thus far on the situation of individuals who are fleeing persecution being turned away at the United States border, and subsequently returned to their home country.  For example, reporters have underscored the plight of Iraqis who provided assistance to U.S. forces during the Iraq War, and who have expressed fear over their safety if they remain in Iraq.

Defenders of the President’s power to issue the Executive Order point to a 1950s era statute passed by Congress, Section 212(f) of the Immigration and Nationality Act ( 8 U.S.C. 1182(f)).  This provision is the key to the power Mr. Trump claims to suspend entry of certain categories of aliens and return them to their home countries.  Section 212(f) says:

“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)

By its own terms, the statute purports to grant the President the power to “suspend the entry” of aliens.  However, the Trump Administration has gone further.  The Trump Administration is turning aliens away from the border and returning them from whence they came.

In my prior blog post, I argued that the Executive Order conflicts with existing law in two ways.  First, the Order is being used to deny persons at the border the right to request relief from removal under either Withholding of Removal or the Convention Against Torture (CAT).  In general, aliens arriving at a U.S. port of entry who file an application seeking these forms of relief may be detained in a detention facility pending a review of their application, or they may be released subject to home monitoring or otherwise “paroled” into the community, but these aliens are not considered to have made an “entry” into the United States during the period that they are awaiting a decision on their application.  No matter where they are physically located, legally they are treated as if they are still at the border.  Section 212(f) and its focus on “entry” cannot be read to grant the President the power to override the right of an alien to file for relief under either the Withholding or CAT provisions.

Second, a successful application for relief under Withholding of Removal or the CAT does not necessarily mean that the alien will eventually be allowed to enter the United States.  A successful application merely guarantees that the alien will not be returned to a nation where they face either persecution on the basis of specified grounds (Withholding of Removal) or the likelihood of torture (the CAT).  This protection against forcible return is the bedrock requirement of the law.  Even if Section 212(f) granted the broad power to President Trump to “suspend entry” that his defenders claim, it does not grant him the power to override the mandatory protection against return to a country where you are at risk.  Aliens granted these forms of relief, but nonetheless denied entry to the United States, are entitled to receive transportation to a third country (government leaders in Canada and Scotland have at least informally offered to take refugees turned away from the United States under the Executive Order).

Suspending the “entry” of aliens is therefore completely separate from the right to file a request for relief from removal under the law, the benefits of which may not involve actual permission to enter the United States.  By preventing arriving aliens from pursuing their rights under the law the Order goes beyond the actions permitted by the language of Section 212(f).

The Trump Administration seems to be implementing the Executive Order in a manner that cuts off legal avenues for refugees beyond the overseas refugee resettlement program.  Approximately 46% of the refugees admitted to the United States in fiscal year 2016 were Muslim.  Most of these refugees were admitted via the overseas refugee program, which involves a multi-year application and vetting process before a visa to immigrate to the U.S. is issued.  However, an alternative legal path for refugees is to simply arrive at the border and request either Political Asylum, Withholding of Removal or relief under the Convention Against Torture.   Reports in the media that Customs and Border Enforcement officers were refusing to let lawyers speak to detained aliens at airports suggest that the Trump Administration does not want arriving aliens to learn of their right to pursue this second avenue under federal law, which would prevent their immediate return to their home country.

[In 1996, Congress amended the Immigration and Nationality Act to replace the concept of “entry” into the United States with the concept of “admission.”  Not all statutory provisions were changed, leading to persistent questions of statutory interpretation.  Aliens at a port of entry, or even held in detention facilities for days and months subsequent to their arrival, are not considered to have “entered” the United States notwithstanding the fact that they are standing on U.S. soil].

Even if we were to read Section 212(f) more broadly than its words, and conclude that it expressly grants the President the power to override not just statutes relating to “entry” but also other legal provisions such as those governing Withholding from Removal and the CAT, the Executive Order would still be unlawful.  This is because Congress, in a statute passed subsequent to Section 212(f), commanded that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” (8 U.S.C. section 1152(a)(1)(A)).  By its language, this later statute permits of only narrow exceptions, and supersedes all prior statutes to the contrary.  When two Acts of Congress are inconsistent, the Act which is later in time controls.  Therefore, the anti-discrimination bar applies to limit the authority granted to the President under the earlier law.

Finally, the United States Constitution trumps everything (pun intended).  Even if we turned ourselves into pretzels attempting to rationalize a reading of the relevant statutory language into congressional approval of the broad executive power invoked in President Trump’s Executive Order, the Congress cannot authorize the President to do what the U.S. Constitution prohibits.  In this case, the Equal Protection Clause prohibits discrimination against certain categories of green card holders on the basis of their religion or nationality, when other green card holders are treated differently.  As applied to permanent resident aliens, the Executive Order is unconstitutional whether or not any congressional statute purports to grant the president the authority to act.  Perhaps this is why, less than 48 hours after issuing the Order, the Trump Administration has already abandoned the claim that the Order applies to green card holders.

News reports indicate that the Trump Administration drafted the language of the Executive Order on the fly, without pre-clearance from the White House Office of Legal Counsel which would have assessed the legality of the Order.  This presents a cavalier attitude towards the Rule of Law that is troubling.  More importantly, this entire debacle also represents a cavalier attitude towards the lives of the human beings impacted by the Executive Order.  For many readers of this blog, the use of government power without regard for the consequences on people’s lives raises moral issues that far exceed the legal questions addressed above.

This Post Has 22 Comments

  1. Heather Pantoga

    Thank you Professor Fallone, for keeping up and keeping us informed of the legalities.

  2. Ricky Pelishek

    These executive orders are exactly what you would expect from Trump and his Trump Tower penthouse oval office. Trump’s main advisor has always been himself. As President he believes laws do not apply to him since he owns the country. I believe his disdain is sometimes used to hide the fact that he doesn’t know the law or lawmaking process. . . and, he doesn’t care to know. He likely doesn’t understand the role of the US Constitution, what defines the scope of Federal Statute making, has never touched a volume of the US Code or know what the CFR or US reports are and what part they play. So, When Trump decides to create an Executive Order, they are illegal, unpredictable and usually ludicrous.
    A good constitutional attorney who would not be fired by pointing out errors and illegalities in Trumps executive orders or how ignorant they make him appear is needed. But,Trump is always right, so that person would never be hired.

  3. Jeremy Hager

    Solid Pun, sir.

  4. Edward A. Fallone

    Today, the State of Washington filed a lawsuit against the President challenging the legality of the Executive Order and seeking a preliminary injunction halting the implementation of the Order. The Complaint includes counts that make the same legal arguments that I made in my two blog posts over the weekend, as well as additional counts alleging violations of the Establishment Clause and the Due Process Clause of the U.S. Constitution, and violations of the Administrative Procedure Act:

  5. Edward A. Fallone

    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.

  6. Ricky Pelishek

    It really concerns me when people respond to anything President Trump does with “kid gloves”. When Barack Obama was President, he was bombarded with, I believe, numerous ludicrous accusations. Everyone freely said what they thought boldly and bluntly. Could it be that people fear the President of the United States? Are they afraid that he will seek revenge? I agree the statements by are like saying your wife is “a little bit pregnant.”

  7. Ricky Pelishek

    My computer glitched. Sorry. I agree that the statements on the Executive order are like saying our wife is “a little bit pregnant.” Where have the strong definitive legal opinions, like yours, gone? I am getting out my copy of “Rules for Radicals” just in case legislators and community leaders all end up cowering in the corner. I think we should treat all Presidents the same, by passionately speaking out and communicating with them in support or disagreement of their actions. Its what we do!

  8. Rip McManus

    Interesting perhaps to note that Truman vetoed 212(f), only to have his veto overridden (it was, after all, the McCarthy era). I have to say that, to me, the sentiments he expressed then apply as much to countries like Syria today as they did to Poland in 1952.

    “We do not need to be protected against immigrants from these countries – on the contrary we want to stretch out a helping hand, to save those who have managed to flee into Western Europe, to succor those who are brave enough to escape from barbarism, to welcome and restore them against the day when their countries will, as we hope, be free again.”

    That sounds a lot like the USA in which I *thought* I lived. 212(f) has evolved since then, dramatically after 9/11, but the dearth of confusing immigration law, frequently contradictory in its legalese and consistently inconsistent in its enforcement (I’m a US citizen married to a foreign national), proves that the letter of the law in this country does not begin to capture its spirit. To Donald Trump, the spirit of 212(f) justifies his xenophobic actions while not invalidating his financial interests in the Middle East.

    Sadly, legal vs. illegal is not the same as right vs. wrong. When it’s not, we must return to the argument of right vs. wrong. “Love one another” is a much stronger, and clearer, law than the millions of pages of legal droning on the books in this country that one cannot hope to interpret without retaining a highly paid lawyer. “Love one another” trumps Trump’s executive order every day, 212(f) notwithstanding.

  9. Zoe Brain

    Legalities are irrelevant when there are no means of enforcement.

    The US is in a Jacksonian constitutional crisis, regarding the de facto rather than purely de jure limitations to executive power.

    As a hypothetical, what would happen if President Trump said “”John Roberts has made his decision; now let him enforce it!”

    “Some border patrol have been defying court orders by detaining legal residents without access to attorneys, in spite of direct personal pressure from United States senators and armies of lawyers.”

    “Specifically troubling for Hayden was Trump saying he would want to do “worse” than torture and would want soldiers to kill terrorists’ families.

    Baier told Trump the latter is explicitly illegal, but Trump insisted, “They won’t refuse. They’re not gonna refuse me. Believe me.”

    Baier said, “But they’re illegal.” Trump brushed it off.

    The Donald insisted, “I’m a leader, I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it.”

    First signs are that he’s correct.

  10. Edward A. Fallone

    So long as the Trump Administration continues to subject Muslim green card holders from the seven affected countries to different rules than those that apply to non-Muslim green card holders, the Executive Order is manifestly unconstitutional. And despite claims that green card holders will no longer be affected by the Order going forward, the Trump Administration continues to apply the Order to them. As explained by the New York Times:

    “Following Mr. Trump’s order, the State Department went even further than prohibiting those outside the country from entering: It issued an internal memorandum revoking the visas of all nationals from those countries, without notifying them, even those who are legally studying, working and living in the United States. . . . . But for now, the loss of their visas means that anyone from those countries who leaves the United States — even for funerals or family health emergencies — would be unable to return without getting a new visa, a lengthy process that cannot begin until the Trump administration has completed its review of the visa program.”

  11. Pepe Santos

    You guys just don’t get it. Trump designed this to fail from the start. After the Ninth Circus upheld it, and another attack occurs, he will tirelessly throw the blame at them for allowing it.

    The Republicans are drafdting a bill to breakup the Ninth Circuit in part due to this upholding. Then Trump can pad the judiciary to his liking. This was just one little battle in an eight year war and he lost by design to hasten the dismantling of what he knew would be his biggest judicial foe throughout his term or terms.

    And since the Ninth has the worst appeal rate, they have cooked their own goose.

    Another WIN for Trump.

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