Three days after President Donald Trump signed an executive order sharply curtailing immigration and the rights of refugees, questions about its reach and legality are increasingly focusing on the order’s uncertainty.
By circumventing normal practices for formulating policies and their execution, the White House has created still-swirling confusion about whom the order targets and how it will be enforced. There is also ambiguity about the legality of the order, which the White House calls extreme vetting but which critics call a Muslim ban, and about how court challenges, already underway, will proceed.
For many abroad, the ban raised questions about how a US president could undertake such an action suddenly and unilaterally, seemingly unfettered by checks and balances. The order’s apparent breaches with usual protocol over how policy is made, and potentially with the law, are creating major problems in its enforcement.
Why has the order created such disarray?
The order targets three groups: refugees from any country, who are blocked from entering the United States for the next 120 days; refugees from Syria, who are barred indefinitely; and citizens from seven Muslim-majority countries, who are barred from entering the United States for at least 90 days. Those countries are Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
But what all that means in practice is not clear, which has led to disorder in its application. The third measure has created the most uncertainty. The Department of Homeland Security initially said that the order barred even legal permanent residents who hold green cards. On Sunday, Reince Priebus, White House chief of staff, appeared to reverse that, but the order still appears to affect foreign students, workers and other visa holders from targeted countries.
How is the order being carried out?
The order clarifies little on enforcement, leaving customs and border officials appearing to improvise. Several federal courts have prohibited deportations under the ban and have ordered that individuals detained at airports or at the border have access to lawyers. But there have been reports of customs and border officials refusing to comply.
This appears to set up a potential conflict between the branches of government — a worrying possibility, as the separation of powers is a cornerstone of US democracy. Should the judicial branch be blocked from performing its role as a check on the executive, it would lead to a constitutional crisis. It is unclear how Trump would respond to such a crisis or how it would resolve.
Can the president do this unilaterally?
The president has broad powers to regulate and restrict immigration without congressional approval, though this is limited by certain constitutional protections that could apply. Trump broke radically in this case with long-held norms of how executive power is exercised.
Those practices are meant to vet a policy for its legality and ability to be enforced, as well as for unforeseen consequences. The process also lets agencies begin planning how they will execute the policy and allows those affected to prepare. The administration appears to have largely skipped that process, drafting this and other recent orders within a small circle of political advisers.
Relevant agencies and the National Security Council were granted little or no review over the immigration order before it was signed. There is no law mandating such an internal review. But, by forgoing it, the administration circumvented an important internal check on executive power, while creating the impression that it is making critical national policy in slapdash fashion.
Is the order legal?
For judges to issue emergency stays, like those that have emerged, they must determine that there is a high likelihood that the legal challenge will succeed — meaning that they think the ban is probably legally deficient, at least when applied to people who have reached the United States and are holding valid papers.
T Alexander Aleinikoff, a former general counsel to the Immigration and Naturalisation Service and a former deputy commissioner of the United Nations refugee agency, said that the ban could conflict with federal and constitutional law. The refugee convention, a UN treaty that is incorporated into US law, prohibits discrimination against refugees on the basis of religion. The Immigration and Nationality Act also prohibits such discrimination in the issuance of visas.
The executive order’s vague, confusing language — which Aleinikoff, a leading expert in immigration law, struggled to interpret with any certainty — could also leave the order open to arguments that it violates constitutional due process protections.
However, the president has broad legal authority to restrict immigration. Under the Immigration and Nationality Act, he can restrict any class of aliens he deems “detrimental to the interests of the United States” without needing legislation or congressional approval.
Can the US bar Muslims?
The courts have not directly decided whether the law grants the president the power to bar a religious group, such as Muslims, or if that would be a violation of the constitution. Federal courts may be reluctant to rule on such a broad constitutional question, Aleinikoff said.
Narrower challenges could lead the White House to introduce a new order that is more carefully tailored to pass legal muster. Overturning the order outright would most likely require establishing that it is a ban on Muslims, which the White House has denied.
— Is this a Muslim ban?
The order does not explicitly target Muslims but rather nationals of seven Muslim-majority countries, which also contain non-Muslim minorities. However, there is growing suspicion that the order grew out of Trump’s campaign promise of, as he put it in a December 2015 statement, “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
Critics have pointed out that, since 2001, no foreign-born citizens from the countries targeted by the order have committed terrorist attacks in the United States. The September 11 hijackers originated from countries not covered by the ban. And Trump has promised exceptions for Christians from the targeted countries.
Rudy Giuliani, a former New York City mayor and adviser to the Trump campaign, told Fox News on Saturday that he had helped modify Trump’s campaign proposal to temporarily bar Muslims into the current order as “the right way to do it legally.”
When Trump first proposed a Muslim ban in 2015, it was condemned almost universally, including by fellow Republicans. Mike Pence, who is now vice president, wrote on Twitter at that time, “Calls to ban Muslims from entering the US are offensive and unconstitutional.”
Now that Trump is president, some Republican leaders are supporting the order, and many others have declined to challenge it. That, in turn, raises questions about whether US political norms could shift — or already have — to allow for policies that were considered unthinkable only a year ago.