In his first full week in office, President Donald Trump has embarked on an aggressive attack on the American status quo through a rapid succession of executive orders. These orders alone have the potential to reshape the American landscape as we know it.
For those unfamiliar, every United States President is vested with executive authority when he takes office and can issue executive orders. These orders are binding upon federal agencies. Executive orders are used to direct the actions of federal officials and agencies, but cannot exceed laws established by congress. Most importantly, executive orders cannot operate outside of the bounds of the United States Constitution.
The most recent executive order and the one which has caused the most uproar is Trump’s ban on immigration from a select group of countries, prompting cries of religious bigotry and racism.
The order suspends the issuance of “Visa’s and other immigration benefits” to nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen for ninety days. Interestingly, the order does not include Saudi Arabia, a major hub for the 911 terrorists and the putative home of Osama bin Laden.
Even individuals who have current green cards or visas are now restricted from entering the country. Trump, however, has taken it a step further. In a television interview, Trump said that Christian refugees will be given top priority.
Trump and his supporters have insisted that this is not a Muslim ban. The problem is that on numerous occasions on the campaign trail, Trump has explicitly called for just that—a complete and total ban of all Muslims from entering the United States.
The plenary powers doctrine places the admission of non-US citizens to the United States squarely under the control of the Executive Branch and the Congress. In the 1972 case, Kliendienst v. Mandel, the Supreme Court , in upholding that doctrine, ruled that the President could institute immigration restrictions for “facially legitimate and bona fide” reasons. The real question then is whether or not the reasons advanced by Trump are facially legitimate and bona fide. This may look like a standard that favors Trump’s opposition, but it’s not that clear. When the Court says facially legitimate and bona fide, it means that it will not look beyond the stated reasons for the effectuation of the act unless there is a constitutional violation.
Because Trump has couched his Executive Order as a ban on immigration from certain countries, it certainly makes the decision from any Court a more difficult one. The order doesn’t say it’s a ban on Muslims. Our legal system is built on precedent, and the current caselaw strongly supports the plenary powers doctrine.
But the facts underlying this order suggest that it may run afoul of at least four constitutional clauses, most notably the Establishment Clause of the First Amendment. Under the Establishment Clause no person can be punished for entertaining or professing religious beliefs or disbeliefs. Ironically, the view of the Establishment Clause adopted by Justice Clarence Thomas in the Elk Grove and Town of Greece cases indicates that the Establishment Clause applies to acts affecting non-citizens as well as citizens. There is little doubt that the plenary powers doctrine in this instance would be overridden by the Establishment Clause if the court looks beyond the language of the order to its intent.
Trump may have a tough time convincing a court that this order is little more than religious targeting. None of the attacks on American soil since September 1, 2011 have been committed by individuals from those nations restricted by the ban. There is absolutely no evidence that those nations lent support to any persons in American terrorist acts. At best, Trump can only argue that countries under the ban are those where terror activity is thought to be most active. But if the ban was truly aimed at countries where terrorism is generated or most active, France would have been added to this list.
The reality is that Trump cannot tie these countries to specific episodes of terror inside the US, he cannot tie any individuals from these countries to any specific acts of US terror; he has only singled out countries with large Arabic populations as terror purveyors while excluding European countries with documented terrorist problems and perhaps most persuasively, he has advocated giving Christians priority in vetting. All of these facts suggest that the executive order was not issued in good faith but that it was merely a ruse for the President’s intended purpose—to exclude Muslims from entry into the United States.
Judge Ann M. Donnelly of United States District Court Eastern District has already issued a stay of the portion of the President’s actions removing holders of immigrant and non-immigrant visas, individuals with refugee applications and others from the United States. The true legal battle, however, is just beginning.
The implications of Trumps actions are huge for people of color. If successful, Trump and his alt-right cabinet will have found a formula to systemically eliminate immigration from countries with black and brown populations. This should serve as a wake-up call to those who feel that the vote doesn’t matter in America.
Robert Tarver is a practing attorney in New Jersey and the NorthStar News Legal Analyst.