by Margaret Hu, Associate Professor of Law, Washington and Lee University School of Law
On Jan. 25, 2017, The Economist reported that United States had been downgraded from a “full democracy” to a “flawed democracy.” Coincidentally, on the same day, President Trump issued two executive orders titled, “Border Security and Immigration Enforcement Improvements” and “Enhancing Public Safety in the Interior of the United States.” The former states that it was “the policy of the executive branch to . . . secure the southern border of the United States through the immediate construction of a physical wall” between United States and Mexico. The latter threatens the loss of federal funding for “sanctuary” jurisdictions, those state and local governments refusing to cooperate with the federal government in the detention and deportation of undocumented immigrants. Immediate protests erupted across the nation.
Two days later, on Jan. 27, 2017, President Trump issued another Executive Order on immigration policy, titled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The most recent Executive Order on immigration bars the admission of all refugees to the United States for four months and excludes immigration from seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. For Syria, the suspension of immigration is indefinite. For the remainder of the countries, the suspension, for now, is stated as temporary. The Executive Order asserts that immigration from those countries is “detrimental to the interests of the United States” and suspends immigration from those countries for ninety days while visa protocols are scrutinized. The tumult has been immediate, with persons from those countries, already rigorously screened and approved for entry in this country, suddenly finding themselves detained at airports and fearing a return to their home countries where they could be placed in harm’s way.
The most recent Executive Order, signed on Jan. 27, 2017, begins by explaining that the terrorist attacks of Sept. 11, 2001, were the result of terrorists who were not blocked from entering the United States by visa screening protocols. It notes that even with subsequent reformation of those protocols, foreign terrorism incidents have continued since 9/11. Some have observed, however, that the list of the seven “countries of concern” do not include Saudi Arabia, Egypt, Lebanon and the United Arab Emirates, which were the countries of origin of the 9/11 hijackers. Others have observed that the terrorist activity after 9/11 has been carried out by those already residing within the United States, including U.S. citizens and that there is no evidence of refugees arriving with terroristic intent. The Executive Order then explains that proponents of terrorism, violence and bigotry and opponents of the Constitution and Americans should be excluded.
The constitutionality of this action was questioned immediately in the federal courts and through more protests across the nation. Protesters and attorneys immediately gathered at airports to try to protect and represent those immediately impacted by this Executive Order.
There is a reason that the Executive Order is so controversial: it appears to potentially run afoul of all three branches of government. First, it appears that the Executive Order may not pass the scrutiny of the judiciary. On Jan. 28, 2017, one day after the issuance of the Order, in Darweesh v. Trump, attorneys from the ACLU and other organizations filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief in the Eastern District of New York. The complaint involves two individuals from Iraq who were en route to the United States after the Executive Order was signed and who had been granted immigration visas prior to the Executive Order. Judge Ann Donnelly of Eastern District of New York concluded on the same day that challengers to the Jan. 27, 2017, Executive Order are likely to succeed on the merits in showing that it violates the Due Process and Equal Protection rights of the plaintiffs and those similarly situated. Several days after the announcement of this Executive Order, the White House has not yet formally published the Executive Order on its website.
Second, it appears that the Executive Order may not comply with the legislative branch. The complaint in Darweesh v. Trump, for example, alleges that the Executive Order violates rights and processes prescribed pursuant to long-standing immigration laws. The complaint specifically states that the Executive Order is “ultra vires.” In other words, the complaint argues that the Executive Order falls beyond the scope of the authority of immigration statutes. Because the district court’s decision to halt the implementation of the Executive Order is the first step in this litigation, future court proceedings will determine whether this court and perhaps other federal courts, will agree that the Executive Order exceeds statutorily prescribed immigration powers granted by Congress.
Third, it appears that the Executive Order may be inconsistent with the expected vetting and advisory protocols of the Executive Branch itself. According to media reports, in Darweesh v. Trump, U.S. Department of Justice attorneys were unable to respond to the district court’s queries regarding how the Executive Order would be implemented. Other reports indicated that the advice of the U.S. Department of Homeland Security was not solicited prior to the issuance of the Executive Order. “I think the government hasn’t had a full chance to think about this,” Judge Donnelly stated during the hearing on Jan. 28, 2017. To date, four federal judges have blocked parts of the Executive Order.
Administrations over the past 50 years have often publicly articulated a vision of immigration and refugee policy that reflects a sense of humanity and a desire to bring immigration policy in line with a modern sense of equality, civil rights concerns and the international human rights framework. The Economist explained that the “flawed democracy” designation was not based upon the recent election of President Trump or actions of President Trump. Rather, it was based upon index measures compiled and analyzed by the Economist Intelligence Unit’s annual Democracy Index, which is described as, “incorporat[ing] 60 indicators across five broad categories: electoral process and pluralism, functioning of government, political participation, democratic political culture and civil liberties.” The Economist further stated that the downgrade from full democracy to flawed democracy was largely a result of a “continued erosion of trust in government and elected officials, which the index measures using data from global surveys.” At the same time, the downgrade did not feel like a coincidence, based on the public response. A growing chorus of leaders are currently voicing concern, including U.S. Senators, U.S. Representatives, civil rights leaders, at least 40 Nobel Laureates, thousands of academics, mayors across the United States and presidents of universities.
A constitutional democracy depends on the consent of the governed, the respect for fundamental rights such as Equal Protection and Due Process and the coordination of shared powers. As seen by the litigation and the tens of thousands of protesters who gathered throughout the nation this past week, many are concerned that the Executive Orders on immigration violate these principles.