Diversity Leadership Council Newsletter
The newsletter of the ISBA’s Diversity Leadership Council

June 2017, vol. 10, no. 1

Legal Authority and judicial oversight of Executive Order 13769

President Donald Trump’s Executive Order 13769 (hereafter EO 13769) immediately led to criticism, confusion, and court action. Using his power to “take Care that the laws be faithfully executed,”1 President Trump issued EO 13769 “to protect Americans” by ensuring “that those admitted to this country do not bear hostile attitudes toward it and its founding principles.”2 To achieve this purpose, EO 13769 uses the Immigration and Nationality Act (hereafter INA or the Act),3 and existing U.S. Department of Homeland Security modifications, to ban nationals from certain “countries or areas of concern”4 : Iraq and Syria,5 Iran and Sudan,6 and Libya, Somalia, and Yemen.7

This article will address the legal challenges brought against EO 13769 and clarify how practicing attorneys should respond to similar procedural and legal issues. It will begin by summarizing the legal authority behind EO 13769, how courts have treated the EO, and end with a summary of what attorneys will need to be aware of going forward.

Legal Authority for EO 13769

According to Youngstown Sheet and Tube v. Sawyer, “the President’s power, if any, to issue [an executive] order must stem either from an act of Congress or from the Constitution itself.”8 Since no clause in the Constitution gives the President power over immigration, the authority for EO 13769 must come from a federal statute: in this instance, said authority comes from the Immigration and Nationality Act.9 Once statutory law allows the President to act, administrative law presents the President with a great amount of leeway to direct federal agencies.

A. Immigration and Nationality Act

Under the INA, standards have been established to disqualify certain persons from entering the country. Under the current version of the INA, section 1182 identifies the criteria by which individual immigrants will not be granted visas, including those involved in terrorist activities.10 Likewise, under another section of the Act, all citizens from any country may be disqualified from obtaining visas; Iraq and Syria are named specifically, but the section gives the Secretaries of Homeland Security and State the authority to designate any other country whose citizens will be banned. The criteria for such a decision is defined as when “the government of [the designated country] has repeatedly provided support of acts of international terrorism.”11

Finally, there are two catchall provisions in the statute allowing the Executive Branch to designate other banned countries. The first is when the Secretaries of Homeland Security and State decide “the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States” or when “a foreign terrorist organization has a significant presence in the country or area.”12 Secondly, the President may directly limit “the entry of any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States” through “proclamation, and for such period as he shall deem necessary” which will “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.”13 This last clause is the primary authority by which EO 13769 was issued.

B. EO 13769 and the Bureaucracy

Executive orders are only binding on the agencies specified within the order. EO 13769 directs the Secretary of Homeland Security primarily, the Secretary of State secondarily (which are the relevant departments identified in the INA),14 and the Attorney General as consultant.15 While the EO commences action, it is the administrative agencies which perform the actual implementation of the EO. This was established in the common law executive authority, and as the federal bureaucracy grew, the U.S. Supreme Court recognized the power of the chief executive to direct federal agencies.

In Myers v. U.S. the Supreme Court identified part of the President’s Article II powers is that “[in] all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it.”16 The Court recognized that the buck stops with the President, but that lower executive officials must be the “boots on the ground.” The court elaborated that “[the] ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act.”17 Executive orders are the method by which federal agencies execute federal laws.

Administrative agencies and the civil servants within them take the EO and act to fulfill the President’s desired goal. Rarely, agencies will not comply: in EO 13769 acting Attorney General Sally Q. Yates directed Department of Justice lawyers to “not present arguments in defense of the Executive Order [13769]” since she was “not convinced… that the Executive Order is lawful.”18 In response, President Trump immediately fired Yates19 and replaced her with Dana J. Boente, who immediately rescinded the original directive, and directed “the men and women of the Department of Justice to do our sworn duty and to defend the lawful orders of our President.”20 Likewise, it is rare for courts to accept legal challenges to executive orders, and the court generally defers. However, courts do have the power to determine whether an EO is a proper construction of the relevant statute.

Judicial Oversight

Immediately, there were legal challenges to implementation of the EO. Since federal courts have jurisdiction over federal Constitutional issues,21 all the challenges were brought to federal courts in various districts. It is important to note that none of these challenges is a substantive challenge to the EO itself, but rather they are procedural challenges for injunctive relief or temporary restraint to suspend implementation the EO while substantive litigation goes forward. While there is very little precedent for federal courts ruling against EOs, EO 13769 has met with significant judicial interference.

A. New York, Massachusetts, and California

After implementation, two Iraqi immigrants were detained and sued the President and Secretaries of State and Homeland Security. The judge in the case ordered an injunction against deportation, citing a likely violation of all similarly situated persons’ due process and equal protection rights under the U.S. Constitution.22 While this limited ruling did not go so far as to rule on the Constitutional issues, or even let any immigrant under the EO into the country, the ruling did recognize that a cause of action based on the constitutional violations would “have a strong likelihood of success.”23 The District of Massachusetts also granted a stay on the Due Process and Equal Protection Claims,24 and the California case also made a similar ruling, citing the likely success of bringing claims for violation of the establishment clause as well.25

B. Virginia

A federal court in Virginia ordered a seven day restraining order against the Customs and Border Protection Agency to stop forcing incoming immigrants to give up their green cards before redirecting them out of the country, so that any affected individuals could present any legal challenges or defenses to their deportation.26 In explaining the order, Judge Leonie Brinkema claimed “It’s quite clear not all the thinking went into it that should have gone into it. As a result, there was chaos.”27 While the order was temporary (expired on February 4, 2017) and only applied to “legal permanent residents,” the judge’s reasoning identified criticism that the order was too hastily implemented; a criticism recognized and addressed by the Secretary of Homeland Security, John Kelly.28 In light of this recognition by both parties, it is likely that challenges along the same rationale will persist.

C. Washington, Minnesota and the Ninth Circuit

The most successful challenge so far has been the one made by Washington State in challenging the EO. Washington argued the same Constitutional violations as the states above, and further argued the EO fundamentally hurt the state universities and businesses.29 Similarly, Washington used both candidate and President Trump’s public statements as evidence of his motivation for the travel ban.30 The federal judge granted the temporary restraining order (TRO) on implementing the EO, on the grounds31 that Washington is likely to (1) succeed on the merits in a cause of action, (2) suffer irreparable harm without relief, (3) balance of equities favors the state, and (4) relief is in the public’s interest,32 as well as equity being in their favor by establishing “at least serious questions” as to the merits of their claim.33 He went beyond the courts above in granting the TRO “on a nationwide basis” since “partial implementation of the Executive Order ‘would undermine the constitutional imperative of ‘a uniform Rule of Naturalization’ and Congress›s instruction that ‘the immigration laws of the United States should be enforced vigorously and uniformly.’”34

The U.S. immediately made an emergency appeal to the Ninth Circuit Court of Appeals, and the court granted; Minnesota joined Washington in this appeal.35 Arguments were held very quickly and the court ruled (within a week of the original District Court order) to uphold the ban. In the ruling, the court held that Washington was likely to succeed on their claims that EO violates the Due Process and religious rights of states’ citizens,36 that the government did not meet the burden of proving the restraining order is outside of judicial power to enforce and that the order represents irreparable harm to separation of powers doctrine, 37 and that public policy demands the order remain in effect.38

It is almost certain that this case will be taken up by the U.S. Supreme Court, which currently has only eight members. In the result of a 4-4 decision, the holding of the lower court will stand and the injunction will remain in place while the parties litigate the substance of the states’ claims.

What Attorneys Need to Know

While many jurisdictions have ruled on different points of law, and many more cases are yet to come, the Ninth Circuit’s ruling as well as the trend of rulings in the various District Courts, presents two important issues that immigration and government attorneys will need to keep in mind, as well as two issues with constitutional implications.

A. Due Process and Religious Claims have Merit

Every order for relief has been granted on the grounds that the EO creates some due process and religious freedom violation where those affected will succeed on the merits in a cause of action. The ubiquity of this rationale in these orders points to a strong likelihood that all suits against the EO will claim these violations. At the very least, federal courts have said outright that it is likely a due process violation exists when incoming people are immediately deported and their green card is seized. When representing clients affected by the EO, these Constitutional claims are the threshold issue by which any cause of action will have a prayer of success.

B. Business and Educational Interests have some Merit

Washington’s argument that the EO negatively affected the state businesses and universities was accepted by the Eastern District of Washington as the primary reason the court granted the nationwide stay on the EO’s implementation.39 Beyond the Constitutional questions, the success of this argument suggests that economic and educational issues are outside of the INA’s grant of power, and therefore would be outside the EO’s authority. Beyond these procedural requirements, these bedrock American principles represent further avenues for attorneys to successfully challenge the EO, as well as U.S. Attorney’s seeking to defend any similar EO in the future.

C. Checks and Balances

In an unusual move, the Eastern District of Washington and the Ninth Circuit ruled against the Executive Order, claiming the EO went beyond the authority granted to the President in the INA. According to the Congressional Research Service, “the limited case law addressing exercises of presidential authority under Section [1182(f)] also supports the view that this provision of the INA confers broad authority to suspend or restrict the entry of aliens.”40 While presidential authority is well established in both administering executive orders and in Section 1182(f) of the INA, it is not unlimited. It is not unprecedented for (1) courts to review the validity of an EO or (2) overrule an EO when it goes beyond the President’s sphere of power. However, the completeness with which the courts have acknowledged potential constitutional violations is certainly unusual. Depending on the final disposition of the case, these cases may provide future precedent for challenging an EO or any other executive action.

D. Political Statements

Something that is without precedent is the Eastern District and Ninth Circuit Courts’ acknowledgment of statements made by candidate Trump, before he held any Executive Power at all. In the Ninth Circuit decision, the court recognized the State’s “evidence of numerous statements made by the President about his intent to implement a “Muslim Ban”… the Executive Order was intended to be that ban… [and] it is well established that evidence of purpose beyond the face of the challenged law may be considered” when evaluating the Constitutional claims here.41 This seems at odds with other Circuit Court rulings,42 including a Ninth Circuit Court,43 which have specifically rejected the use of political statements as evidence of intent. Whether this precedent goes beyond the Ninth Circuit is unclear, but currently the door has been open, and may present litigious issues when candidates make statements in the course of running for office.

Conclusion

Executive Order 13769 has led to many legal results, both expected and unexpected, in the short time frame from when it was passed. Recognizing the uncertainty of the EO in the courts, the DOJ Brief filed in the Ninth Circuit, stating that “rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.”44 Even with revisions, it is likely that court challenges, protests, and questions about immigration status will continue. As these issues are raised across the country, attorneys will need to be prepared to litigate them, and the case history provides the requisite background for attorneys to be successful.

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1. U.S. Const. art. II, § 3, cl. 4.

2. Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017).

3. Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (2015).

4. 8 U.S.C. § 1187(a)(12)(D).

5. 8 U.S.C. § 1187(a)(12)(A)(i)(I).

6. U.S. Dept. of Homeland Sec., 2016 WL 245644 (D.O.J.), United States Begins Implementation of Changes to the Visa Waiver Program (Jan. 21, 2016).

7.U.S. Dept. of Homeland Sec., 2016 WL 641384 (D.O.J.), DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016).

8. Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579, 585 (1952).

9. 8 USC § 1182(f).

10. 8 USC § 1182(a)(3)(B).

11. 8 USC § 1187(a)(12)(B).

12. 8 USC § 1187(a)(12)(D).

13. 8 USC § 1182(f)

14. Id.

15. Exec. Order No. 13769, 82 Fed. Reg. at 8980-81.

16. Myers v. United States, 272 U.S. 52, 134 (1926) (emphasis added).

17. Myers, 272 U.S. at 135 (emphasis added).

18. Guidance letter from Sally Q. Yates, acting Attorney General of the United States, to Department of Justice attorneys (Jan. 30, 2017) (held by N.Y. Times available at https://www.nytimes.com/interactive/2017/01/30/us/document-Letter-From-Sally-Yates.html).

19. Mark Landler, Matt Apuzzo, and Eric Lichtblau, Trump Fires Justice Chief Who Defied Him, Acting Leader Would Not Defend Order on Immigration, N.Y. Times, Jan. 31, 2017, at A1.

20. U.S. Department of Justice, DOJ 17-131, Acting Attorney General Boente Issues Guidance to Department on Executive Order (Jan. 30, 2017).

21. 28 U.S.C. § 1331.

22. Darweesh v. Trump, No. 17 Civ. 480 (AMD), 2017 WL 388504 (E.D.N.Y., Jan. 28, 2017).

23. Darweesh, No. 17 Civ. 480 at 1.

24. Tootkaboni v. Trump, No. 17-cv-10154, 2017 WL 386550 (D. Mass, Jan. 29, 2017).

25. Vayeghan v. Kelly, Case 17-00702, 2017 WL 396531 (C.D. Cal. Jan. 29, 2017).

26. Aziz v. Trump, No. 1:17-cv-116, 2017 WL 386549 (E.D. Va. Jan. 28, 2017).

27. Josh Gerstein, Federal Judge Lets Virginia Challenge Trump’s Vetting Order, Politico (Feb. 3, 2017, 11:55 AM EST), http://www.politico.com/story/2017/02/trump-travel-ban-virginia-234609.

28. Julia Edward Ainsley, Homeland Security Chief Regrets Rapid Rollout of Trump Travel Ban, Reuters (Feb. 7, 2017, 4:06 PM EST), http://www.reuters.com/article/us-usa-trump-immigration-kelly-idUSKBN15M1UX.

29. Complaint for Declarative and Injunctive Relief at 3-4, 8-13, Washington v. Trump, No. C17-0141JLR (E.D. Wash. Jan. 30, 2017).

30. Complaint for Declarative and Injunctive Relief at 6-8, Trump, No. C17-0141JLR.

31. Washington v. Trump, No. C17-0141JLR, 2017 WL 591360 at 2 (W.D. Wash. Feb. 3, 2017).

32. Citing the federal standard set in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

33. Citing the Ninth Circuit standard in All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).

34. Trump, No. C17-0141JLR at 5 (citing Texas v. United States, 809 F.3d 134, 155 (5th Cir. 2015), emphasis in original).

35. Washington v. Trump, --- F.3d ---, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017).

36. Trump, No. 17-35105 at 24, 26.

37. Id. at 18, 27.

38. Id. at 26-29.

39. Trump, No. C17-0141JLR at 4-5.

40. (Name Redacted), Cong. Research Serv., R44743, Executive Authority to Exclude Aliens: In Brief 3 (2017).

41. Trump, No. 17-35105 at 25.

42. Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995).

43. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1138 (9th Cir. 2004).

44. Supplemental Brief on En Banc Consideration at 4, Washington v. Trump, --- F.3d --- (9th Cir. 2017) (No. 17-35105).

 

This article was originally published in the Kane County Bar Association’s Bar Briefs April 2017 Diversity issue.

Matt Timko is the Academic Technologies and Outreach Services Librarian, and an Assistant Professor at the Northern Illinois University College of Law. He graduated from Loyola University Chicago School of Law with a J.D and LL.M. in Child and Family Law, and is an inactive member of the Illinois Bar. He is a member of the Kane County Bar Association, the Chicago Bar Association and the Chicago Association of Law Libraries.