Executive power, national security, and the Trump administration


President Trump has signed several highly controversial executive orders. Three involve foreign policy and national security: the construction of a wall between the United States and Mexico; termination of U.S. involvement in the Trans-Pacific Partnership (TPP); and a temporary travel ban on foreigners and refugees from seven countries in the Middle East and Africa.

The administration is also considering a draft order that could lead to the deportation of undocumented immigrants who receive any form of federal assistance. Under the so-called public charge law, the government may expel immigrants who become financially dependent on U.S. taxpayers. If this new order goes into effect, Vineyard residents without proper immigration papers could well be targeted by the authorities.

Historically immigrants were eligible for some assistance. They have access to Medicaid, the Children’s Health Insurance Program (CHIP), housing benefits, and nutrition programs. And yet a section of the draft has unlimited language: It is the policy of the United States “to identify and remove, as expeditiously as possible, any alien who has become a public charge and is subject to removal.”

The authority of the president

Presidents possess broad legal authority to decide who may come into the U.S., thanks to the 1952 Immigration and Nationality Act, passed during the Cold War and McCarthy red scare to bar Communist infiltrators. The act states that the president has the authority to “suspend the entry of all aliens” whenever he thinks they “would be detrimental to the interests of the United States.”

Mr. Trump has cited this provision to argue that the current review of immigrants and refugees is ineffective. And yet, since 2001, the United States has developed the most rigorous refugee/immigrant review process in the world — it can take from 36 to 48 months for a person to complete.

The 1952 law, however, does not address whether the travel ban is constitutional.

The White House claims that the order is not “a Muslim” ban, something candidate Trump called for in December 2015. But it focuses only on Muslim-majority countries, and in an interview with the Christian Broadcasting Network, President Trump said he would give priority to Syrian Christians. In a Fox News interview on Jan. 28, former New York City mayor Rudolph W. Giuliani said that when the president “first announced … a Muslim ban,” he asked Giuliani to put together a commission to “show me the right way to do it, legally.”

After the president announced the travel ban, career officers in the State Department circulated a “dissent channel” memo, which they have been permitted to do since 1971 during the Vietnam War, decrying the policy of turning away thousands of refugees. They argued the ban would make Americans an even greater target for terrorists. Although the memo was signed by more than 1,000 diplomats, the Trump administration suggested they quit if they disagreed with the order.

Sixteen state attorneys general, including Massachusetts’s Maura Healey, signed a statement claiming the ban was based on religious discrimination against Muslims. Ms. Healey also joined the American Civil Liberties Union in a suit against the president. She declared that “the executive order is harmful, discriminatory, and unconstitutional. It discriminates on the basis of religion and national origin, denies access to due process, violates immigration laws.”

Gov. Charlie Baker supported Ms. Healey’s actions. He maintained that the ban “will not improve our security, and the lack of guidance associated with such an abrupt and overwhelming decision is problematic for all involved.” University of Massachusetts President Marty Meehan noted that “we are deeply disheartened by [the president’s] alarming action that has violated the rights of members of the UMass community and many others.”

In fact, no person from any of the listed countries has participated in an act of terrorism in the U.S. since the 9/11 terrorist attacks.

But is it constitutional?

The overall question is whether presidents, even if they have legal authority, also have constitutional authority to act alone to protect Americans. More specifically, has President Trump violated the First Amendment religion clauses, or the equal-protection clause of the 14th Amendment? Here, the past is useful, if not controlling.

In 1861, Abraham Lincoln, on his own, suspended habeas corpus in Baltimore, then all of Maryland, and ultimately all the way to New England, essentially setting up martial law in most of the Union states. He feared that Washington would be overrun when pro-Southern sympathizers began blowing up railroad tracks and bridges, preventing Northern militiamen from protecting the city.

The courts criticized his unconstitutional action because the suspension of habeas corpus appears in the Constitution’s provision that pertains to Congress (Article I, Section 9), not the president (Article II). Lincoln’s response was to ask, “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?” He figured he had to act when the country was literally falling apart in a bloody civil war.

After the attack on Pearl Harbor, President Franklin D. Roosevelt issued an executive order creating the internment of Japanese-Americans living on the West Coast, mainly in California. The order was clearly mixed with fear, which had no basis in reality, of Japanese espionage and sabotage, and led to the detention of some 110,000 Japanese-Americans and Japanese immigrants for years. Although the United States was also at war with Germany and Italy, no German-Americans or Italian-Americans were interned.

During George W. Bush’s administration, Vice President Dick Cheney advocated the theory of the unilateral executive, arguing that the president must act alone to keep the nation safe without congressional or judicial oversight. Examples: the administration’s opening of the Guantanamo Bay Detention Center in Cuba; executive creation of military commissions; detention of suspected terrorists without the right to counsel, a trial, or even knowing why they were being held. When the Supreme Court called out the Bush administration for denying Guantanamo detainees these rights, the president reluctantly backed down.

President Obama criticized the Bush administration’s unilateral actions, but undertook his own once elected. After he ordered, without congressional approval, American air cover to protect rebels fighting against Libyan President Muammar Gadhafi, congressional leaders of both parties claimed he ignored the War Powers Resolution of 1973, which requires the president to secure congressional approval to have troops in harm’s way for more than 60 days.

But is Trump’s action different?

In making a constitutional argument, the White House may claim a parallel with Lincoln, Roosevelt, and Bush. And yet the Trump travel ban is very different. Hastily crafted to instill fear in Americans that they are in grave danger, it was written at the end of the president’s first week in office when no one there had firsthand knowledge of how rigorous the current system is. Nor did its writers gain input from terrorism specialists in the FBI, the CIA, Homeland Security, or the Defense or State departments.

In the meantime, federal district court Judge James L. Robart temporarily halted the ban after he agreed that Washington State had demonstrated that its universities and industries would be seriously harmed if travelers from the seven countries were prohibited from traveling to the U.S.

He also attempted to gauge whether the stated goal of the order (stopping terrorists from coming into the country) was rationally related to temporarily halting immigrants and refugees from the seven countries the president identified. In the law, this is known as the rational-basis test. Judge Robart found no such relationship, because no terrorist from those countries have engaged in attacks in the U.S.

The 16 attorneys general noted earlier, including Ms. Healey, joined Washington State’s suit against the ban.

The United States’ appeal of his decision to the Court of Appeals for the Ninth Circuit took place on Tuesday evening, Feb. 7. The three-judge panel hearing it promised a ruling this week. The losing side could request that all the judges in the circuit rehear arguments, or it could appeal to the Supreme Court, which, if accepted, would hear it on an emergency basis.

Meantime, because Judge Robart’s temporary restraining order only focused on procedural issues, he has continued to ask both sides for written briefs. He is obviously planning for the future when he will rule on the constitutional merits of the case.

The conclusion is clear: If the travel ban, or the draft order leading to deportation of undocumented immigrants violating the public charge law, is found to be unconstitutional, the American people must demand accountability, even from the president of the United States.

Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University. His most recent book, published last year, is “American Constitutional History: A Brief Introduction.”