In a week following the fatigue from President Trump’s anti-media crusade, the issue of Russian contact with White House staff continues to make headlines. After Attorney General Jeff Sessions recused himself from the ongoing investigation and a former Trump advisor deleted incriminating tweets, Andrew Kent attempts to evaluate the nature of credibility in investigations such as these. Jane Chong considers that the White House and Justice Department may want to re-evaluate their communications practices. This seems particularly apropos in light of Vice President Pence’s own email scandal earlier in the week.
The issue of immigration continues to take several forms. President Trump has assigned the Department of Homeland Security and Justice Department to build a case legally justifying the ban’s necessity, though Benjamin Wittes and Susan Hennessey argue that it is possible the administration may want to examine available data more closely before dictating the report’s outcome. The logistics continue to be called into question legal experts, who insist that the reported number of travelers affected by the ban has been misrepresented. While the Department of Homeland Security issued a request for proposals for a plan to build the oft-promised border wall between the United States and Mexico, it has also been directed to hire 10,000 agents to assist in the enforcement of immigration policy. The New York Times would like to remind us that “the federal government spends more each year on immigration enforcement through Immigration and Customs Enforcement and the Border Patrol than on all other federal law enforcement agencies combined” even before these proposed expenses come into effect. President Trump would end the week using Twitter to note that the national debt has declined in recent weeks.
As the media examines the presidential administration’s political ties to Eastern Europe, Helen Klein Murillo examines the Law of Recusal to determine whether Attorney General Jeff Sessions ought to recuse himself from the investigation.
Reversing the policies of the previous administration continues to be a priority. The Justice Department announced that a plan to phase out private, for-profit prisons will no longer be considered. Eduardo Porter previously considered the ramifications of privatizing the prison system. In a similar move, the Justice and Education Departments jointly rescinded the guidance which granted transgender students protection under Title IX.
As the week opened, many groups remained engaged in providing perspective to the actions of the presidential administration. Najja Parker and Ryan Stultz compiled a list of every executive order signed by President Trump, paired with the context of the executive orders established by previous presidential administrations. Likewise, Ephrat Livni consulted with Erwin Chemerinsky to provide additional context for the possible legal paths that could stand in the way of the travel ban. Josh Blackman critiques the Ninth Circuit’s decision in critical detail, though Michael Ramsay argues that some of Blackman’s analysis may have gone astray in places. Virginia federal district court Judge Leonie Brinkema issued a preliminary injunction against the executive order on immigration, citing “the president’s statements about a ‘Muslim ban’ and the link Rudy Giuliani established between those statements and the EO” as reason to consider it to be an infringement on religious freedom. President Trump has since noted an intent to redraft his executive order. However, Jessica Brandt makes the point at Lawfare that Congress can step in any time and revise the executive authority over immigration.
As anxieties about the fate of undocumented immigrants mount, the Associated Press has uncovered a memo detailing a plan to utilize the National Guard to enforce the Department of Homeland Security’s enforcement of Immigration Policy. Though the proposal was rejected, members of the legislative branch have expressed lingering concerns. President Trump continues to stress his administration’s intent to produce “the most substantial border security measures in a generation.”
With accusations of libelous media flying seemingly everywhere and a high-profile white house resignation, Ambassador Douglas W. Kmiec speculates on the spectre of presidential impeachment. Often invoked in casual discussion, what is actually needed for an impeachment to take place, and is there enough warranted concern to begin proceedings? Kmiec suggests that a fair trial would be possible with respect to constitutional law, even at this early stage in the presidency.
This week, the US was abuzz with coverage of the issue of Executive Order 13769, the travel ban that sparked a thousand protests. Given the intricate legalities of the issue, several authorities have both raised concerns and offered explanations.
Early in the week, Josh Blackman suggested some potential actions that the Supreme Court had available while reviewing the order, as well as potential outcomes for each. With the ninth circuit court of appeals declining to overturn a temporary restraining order on Thursday, Adam Liptak posits a revised view on these options.
With the president implying that he may abandon this endeavor entirely and simply draft a new order, U.S. District Judge Leonie M. Brinkema reports “begging” the administration to “provide some evidence” for the order’s continued existence.
But how will these tumultuous early days be remembered in thirty years? Political Scientist Daniel P. Franklin notes the reconstructive properties inherent in the zeitgeist surrounding this administration, with a view toward historical precedent. Trump’s support and methodology, Franklin argues, reflect a “unique ability to question the central precepts of the last 60 years,” which tends to appeal to a populace clamoring for change. While invoking the legacies of Jackson, FDR, and Reagan, he considers the “bias in our minds toward bold leadership, no matter where it takes us,” and where that bias might lead.
I spent much of my working time yesterday reading a manuscript containing John Selden’s 1628 arguments before the House of Lords on habeas rights. On this point Selden’s core argument is very simple: if individuals can be held by the king without legal remedy, then every subject in the realm has been deprived of “liberty of person.” As Selden’s list of precedents in his speech makes clear, this was already old news to judges by the time he was delivering his address. But the argument had to be made, and made forcefully, in the face of an over-reaching king whose authoritarianism would run roughshod over the nation’s constitutional traditions.
How little things have changed. Perhaps most striking in the legal battle over Trump’s entry ban are the sweeping arguments for executive power made by the government’s lawyers. In the oral arguments before the Ninth Circuit Court of Appeals’ three-judge panel, one judge after the next is gobsmacked by the government’s refusal to offer evidence of the threats to national security to which the Executive Order purports to respond. The government refused to say much of anything beyond what is stated in the text of the order itself, that foreign-born nationals have been known to commit crimes, and that adverse conditions in the seven countries affected create security problems. When pressed by the judges as to the perceived insufficiency of measures Congress had already taken to stiffen visa requirements for these countries’ nationals, the government argued that the president determined that there remained a grave risk. Pressed further still on why no evidence of such a risk had been presented, the government could only argue that ultimately the executive is the branch of government entrusted with national security, and that its determinations on such matters are not reviewable by the courts.
And there it is: the Trump Doctrine, by which the executive can simply shout an emergency into existence and trample on all law in putting out its imaginary fires. The judges were unpersuaded, and pointed out in their decision that the Supreme Court has already demolished this view in the context of the war on terror. The political branches, in the memorable words of Boumediene v. Bush (2008), do not have “the power to switch the Constitution on or off at will.” And in Holder v. Humanitarian Law Project (2010), the Court similarly declares that its “precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role,” though the decision concedes that the courts have limited ability to collect evidence and draw factual inferences in these areas.
Continue reading at The Huffington Post.
President Trump’s Executive Order of January 27, the so-called “Muslim Ban,” has already been the target of widespread condemnation, outrage, and protest. In what has to be some kind of record, within its first seventy-two hours the order’s implementation had been blocked in four federal courts: the Eastern District of New York, the Eastern District of Virginia, the Western District of Washington, and the District of Massachusetts. The last of these goes one step further than the rest in stating that federal authorities may neither detain nor remove those lawfully seeking entry to the United States. Other decisions cover only removal, leaving affected parties stranded at the airport. This immediate and decisive resistance from the bench is especially striking given that the courts tend to give wide berth to the executive branch when national security is invoked.
There is little doubt that this is a clumsy and counter-productive measure that will disrupt the lives of many innocent people. To be fair, calling it a “Muslim Ban” is imprecise. The order has been applied to seven countries so far: Iraq, Iran, Lybia, Somalia, Sudan, Syria, and Yemen. Muslims from Saudi Arabia, or Pakistan, or China are not affected–or at least not yet affected. So it does not apply a religious test to people seeking entry to the US, which is one potential legal problem with the measures Trump proposed during his campaign.
It also frames itself as a temporary measure necessary to national security in a post-9/11 world: its provisions have limited time frames, and tend to call for specific agency actions that would allow the entry ban to be lifted. This, too, gives it legal cover. The executive has broad discretion to take emergency action, and foreign nationals always have limited protection under US law. For this reason, the order will likely survive challenges based on the Hart-Cellar Act, also called the Immigration and Nationality Act (INA) of 1965, which states that “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence” (PL 89-236, 2 (a)). On the face of it, this would seem flatly to contradict Trump’s “Foreign Terrorist Entry” order, but the order itself cites 8 USC 1182(f): “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.” This provision has been used to bar admission for various classes of aliens by several recent presidents, including Reagan, George W. Bush, and Barack Obama. Barring the nationals of seven countries is a much more sweeping action than anything done by these presidents, but legally the door is open for a president to make this kind of move, and it is far from certain that the courts will find the INA to take precedence over the 8 USC 1182 (f).
So why are the government’s lawyers 0 and 4 so far? Because even if its broad aims are legal, Trump’s order is filled with sweeping and imprecise language. As Benjamin Wittes writes in this scathing post at Lawfare, “one of the reasons there’s so much chaos going on right now, in fact, is that nobody really knows what the order means on important points.” Even as the main target of the executive order seems to be visa issuance, it also denies nationals from affected countries “other immigration benefits” (sec. 3). What are those? The phrase could be construed to mean that foreign nationals within the US might have their applications for renewal or change of visa status rejected. This combined with denying “immigrant or nonimmigrant entry” (3(c)) creates a very broad net that catches lawful permanent residents, commonly called green-card holders—the Virginia case was filed on behalf of a class of 50-60 lawful permanent residents who had been detained at Dulles International Airport.
Down the road, one can also imagine the courts objecting to provisions on handling refugees that are clearly designed to advantage Christians and disadvantage Muslims. Though neither religion is explicitly named in the executive order, it is hardly subtle about its intentions: once the admission of refugees recommences after a 120-day stoppage, priority will be given to cases of “religious-based persecution.” But here’s the rub: you do not qualify as being persecuted unless you are a member of a minority religion within your nation of origin. It is doubtful that a minority sect within a majority religion would qualify, even though John Kerry’s State Department declared ISIS responsible for genocide against “Yazidis, Christians, and Shiite Muslims.” Would Shiites ever be able to claim refuge from religious persecution under Trump? It seems doubtful. But the order also suggests that all Syrians will be indefinitely denied refuge. Even as section 5(b) would seem to favor Christians persecuted within Syria, section 5(c) denies entry to all Syrian nationals regardless of religion. So it is imprecise to say that this administration sees only Christian suffering; it sees no suffering at all. Once the Trump administration does move to develop a refugee policy, the courts will likely scrutinize its provisions to assure that they do not favor a particular religion.
This much to lend more detail to what has been widely reported. What has not been reported are the provisions in the order that can have serious domestic implications. In the midst of chaos at the airports, the section of the order on transparency and data collection has been largely ignored. But it is troubling: the Secretary of Homeland Security will issue a public report twice annually on the number of foreign nationals who have been charged with terror-related offenses; who have been “radicalized after entry into the United States and engaged in terrorism-related acts”; and who have been found guilty of “gender-based violence, including honor killings.” The categories here are again hopelessly vague. What qualifies as radicalization? Or as a terrorism-related act? Will such a report compare foreign nationals to the general US population in reporting on instances of radicalization or gender-based violence? That would seem to fly in the face of the intent, which is to use these reports to foment this administration’s various brands of paranoia and hatred.
It has also been noted that the order does not include Muslim-majority nations like Turkey, or even Egypt and Saudi Arabia, whose nationals played key roles in planning and executing the 9/11 attacks. One justification that has been floated is that Trump has business interests in these countries. I find this unpersuasive. Trump knows that Turkey, Egypt, and Saudi Arabia will be very eager allies indeed in a ruthless war against radical Islam, as a means of securing their authoritarian rule at home and of expanding their influence in the region. While it is exceedingly difficult to predict what this president will do next, it looks like we are seeing him ready himself for war: the entry ban was quickly followed by a memorandum declaring it “the policy of the United States that ISIS be defeated.” Combined with a renewed commitment to black sites, to torture, and to indefinite detention at Guantánamo, we can see preparations for an offensive underway: this administration seems to expect that it will soon have fresh batches of detainees to send to Guantánamo. The entry ban seems designed in part to prevent retaliation for the crimes Trump knows he will soon commit.
Cross-posted from The Huffington Post.