We knew the policy was coming. We should have guessed that Trump would botch it — both in terms of the actual policy and in terms of how it was implemented. Now, we have a fustercluck of a “temporary” Arab ban policy. There are potential legal issues involved which I will discuss below. As a major cautionary note, I don’t do immigration law. Despite what the U.S. Supreme Court may think, those of us who deal in ordinary criminal law don’t really get the nuances of immigration law nor all of the technical terms involved.
Before turning to the potential legal challenges, what has happened over the past five days is exactly why there are usual procedures for issuing executive orders. While Trump would probably have still tended toward the outrageous in this policy, some of the problems might have been avoided if things had been handled better. Instead, we have a policy statement masquerading as a policy.
Normally before an executive order is released, the White House staff has consulted with the effected agencies — here, State, Homeland Security, I.C.E., U.S.C.I.S., and T.S.A. — to get there input and make sure that everyone is on the same page at the time of implementation. Additionally, the Office of Legal Counsel typically has gone through the order to make sure that it is legally defensible — not necessarily a winning defense, but at least no glaring fatal flaws for which there is not even a colorable defense — and clearly sets forth the policy.
Consulting with State would have at least have given Trump a clue (not that it would have necessarily mattered to him) about how this policy was likely to play out in terms of global perception. Instead, we get a policy that sounds good to people who really don’t care what other folks think about us but will actually make us less safe by hindering our efforts to build bridges to the residents of the Middle East and making even U.S. citizens think that we are in a war against all Muslims. Consulting with Homeland Security and the agencies within Homeland Security that deal with travel and immigration would have allowed questions to be asked about certain parts of the policy. Doing so would have allowed clarity as to how the policy applies to U.S. permanent residents and those with dual citizenship. It would have also allowed Washington to brief the agents on the ground around the world as to its implementation. Simply put, there should have been nobody stopped in transit. There should have been a clear cut-off that this policy applies to all boarding flights scheduled to leave after noon GMT on Friday (or whatever time the Administration chose).
Putting aside the implementation aspects that led to people being detained in the U.S. while we figured who could stay and who had to be returned, there are also the legal issues.
The biggest one involves what is typically called the delegation doctrine and Chevron deference. Basically put, Congress has the power to make laws about immigration. However, Congress tends to pass general policies and then leave it up to the executive branch to fill in the details. To deal with this reality, courts have come up with these two requirements for dealing with regulations. First, under the delegation doctrine, Congress must at least give some standards to confine the authority of the agency. For example, Congress can say that a foreign national must have a valid visa to enter the U.S. and then delegate to the Secretary of Homeland Security to establish the application process in a manner that assures that people who receive visas are not a national security threat. Second, assuming a valid delegations, Chevron deference provides that a regulation is valid if it is at least arguably consistent with the statutes that it implements. During the Obama administration, these issues were brought up in multiple challenges to climate change regulations and to the Obama immigration policy.
There might be a potential problem with the executive order on this matter. The key paragraph of the executive order — section 3(c) — cites to Section 212(f) of the Immigration and Naturalization Act as the source of authority for the temporary ban on immigration from certain countries. The problem is that Section 212(f) has nothing to do with immigration from any of these countries or terrorism. Instead Section 212(f) allows the president to suspend the entry of specific immigrants or class of immigrants. The question in court would be whether all immigrants from one county would qualify as a class of immigrants.
The second issue involves the Administrative Procedures Act. As the name suggests, there are rules that have to be followed for a valid regulation. These rules require findings by the agency, a published proposed regulation, and a comment period before any new regulation goes into effect. Of course, an executive order is not a regulation. However, one of the challenges to Obama’s policy of deferring deportation was that it was a de facto regulation and that the president should not be able to evade the Administrative Procedure Act by simply claiming that his regulation was an executive order or policy guidance.
The third issue is the only big constitutional issue in the case — due process. The countries in question are not eligible for visa waiver. (Basically, the U.S. has an agreement with certain other countries that U.S. citizens do not need to obtain a visa to visit those countries and that their citizens will not need a visa to enter the U.S. These agreements are basically what allows U.S. citizens to simply purchase tickets on Air France or Qantas or Air Canada to visit Canada, France, or Australia without any additional paperwork.) Because citizens of these countries are not eligible for a visa waiver, any Iraqi who wants to visit the U.S. (or move to the U.S.) has to complete paperwork and undergo a screening process to get a visa. Having gotten a visa (i.e. a document granting them permission to travel to the U.S.), the question is whether the president can legally effectively suspend that visa without making specific findings that the individual with a visa poses a threat to national security or without giving that person any type of hearing. While Section 212(f) does authorize the president to block the issuance of a visa, it is not clear that it authorizes the president to unilaterally rescind a visa already issued. In theory, all of the people who were detained upon entry into the U.S. under this order had a valid visa. More importantly, there are people who were residing in the U.S. who took trips abroad — for business or personal purposes — who had the right to return to the U.S. under their visas who are now stranded abroad with no place to live or stay. The due process clause (here the Fifth Amendment rather than the Fourteenth because we are dealing with the federal government) apples to all persons, not just U.S. citizens. Rights — even if they are only statutory rights — are being infringed without so much as a pre-infringement hearing. And to the extent that the executive order permits exemptions on a case-by-case basis, it provides no guidance or standards for determining when an exemption is warranted.
Because, the suspension of the right to enter the U.S. is only temporary until a “better” vetting process is implemented (ignore that the time table for new regulations is longer than the current temporary suspension and that the order does not identify any specific flaws in the vetting process or any case in which it has failed), the executive order will theoretically expire before any of the cases that it spawns are resolved. That might allow Trump to avoid having a final decision invalidating this poorly conceived policy. But if this executive order is a hint of the sloppy way that this administration will operate, we will probably get a chance to see other policies struggle to survive judicial review.