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What Are the Limits of Executive Action Under Trump?

A preview of the historic test of the separation of powers to come.
Demonstrators protest Donald Trump’s immigration ban at O’Hare International Airport on January 29th, 2017, in Chicago, Illinois.

Demonstrators protest Donald Trump’s immigration ban at O’Hare International Airport on January 29th, 2017, in Chicago, Illinois.

Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz arrived at Dulles International Airport from their country of origin, Yemen, on Saturday. Although they held green cards, Customs and Border Patrol agents handcuffed and detained the brothers — then sent them to Ethiopia. Along the way, the men — just 19 and 21 — were coerced into surrendering their green cards, originally obtained through their father, an American citizen. That same day, some 150 miles north of Dulles, in Philadelphia, a Syrian family was forced to return to Qatar despite having obtained visas for all six members.

President Donald Trump’s January 27th executive order barred foreign nationals from Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen — including dual citizens — from entering the United States for 90 days. That’s 218 million people. The order also suspends the U.S. refugee resettlement program and strongly suggests that more countries will be added to the “no-entry” list.

CNN reported that the Department of Homeland Security had determined the executive order did not apply to green card holders — lawful permanent residents — on Friday, only to be overruled by the White House “overnight.” By Saturday, the White House and DHS seemed more or less unified: Green card holders were to be permitted to enter on a case-by-case basis only. The confusion seemed to pervade the administration: On Sunday morning, Chief of Staff Reince Priebus stated on Meet the Press that, “as far as green card holders moving forward, it doesn’t affect them,” only to subsequently qualify his statement.

On Sunday, 16 state attorneys general announced their commitment to fighting Trump’s order, and 35,000 Americans protested in Manhattan, Boston, Los Angeles, Detroit, and Washington, D.C., alone. Six hundred protesters gathered at the Boise Airport in the red state of Idaho, which went for Trump over Hillary Clinton 59.2 percent to 27.5 percent. At Chicago’s O’Hare International Airport, hundreds of protesters were joined by 150 lawyers “armed with laptops and iPads.”

The United States has not seen so dramatic a test of the executive power or of the separation of powers since 1952.

Yet the drama Trump’s order caused within government and in airports nationwide may be eclipsed by that unfolding in the federal courts. Other presidents have tested the limits of executive power by exercising creative discretion in executing Congress’ laws. This new president, by contrast, has attempted to override the legislature. Now the judiciary must check the executive to restore balance — an undertaking that implicates the very foundations of American democracy.

It is uncontroversial for a president to issue an executive order on the basis of independent authority, congressional delegation of authority, or some combination of the two. The president’s independent authority to wield “executive power” is granted in and defined by Article II of the Constitution, whereas congressional delegation occurs on a statute-by-statute basis — and such delegation may be explicit, implicit, or merely anticipated. But little else is well settled in law. The jurisprudence around executive orders is underdeveloped; the results of challenges, inconsistent.

The first of the five successful initial legal challenges to Trump’s executive order, lodged in the Eastern District of New York over the detention of two Iraqi men at John F. Kennedy Airport, was a petition for writ of habeas corpus. So was the challenge brought in the District of Massachusetts that resulted in a seven-day stay of detention and removal of all entrants who, “absent the Executive Order, would be legally authorized to enter the United States” at Boston’s Logan Airport. The district court for the Western District of Washington, similarly, was asked for and granted a temporary stay of removal for two affected arrivals. Another federal district court, in Los Angeles, ordered DHS to return and admit an Iranian national with a valid visa who was deported before his petition for a writ of habeas corpus and application for a temporary restraining order, or TRO, were adjudicated.

The final successful challenge has met a different fate. In Virginia, tensions between the executive and judiciary are reaching crisis proportions. On Saturday, lawyers filed an emergency application for a TRO in the Eastern District of Virginia — and secured an order granting legal permanent residents at Dulles access to lawyers and a seven-day stay of removal. But even this incomplete form of relief has been denied.

CBP agents at Dulles have defied the ruling — despite DHS’s claim that it is following judicial orders — possibly on the basis of a shaky distinction, one more semantic than legal. The order refers to “all legal permanent residents being detained at Dulles International Airport,” and, as Representative Don Beyer of Virginia stated, despite the length of time for which individuals are being prevented from leaving and questioned, “The official word is no one is being detained.”

From whence CBP’s “official word” came — whether an interpretation from “Mr. Trump” or some DHS internal guidance — remains unclear. CBP officials at Dulles have dodged all efforts to obtain more information, even by the four members of Congress, including Beyer, who came in person to seek answers for constituents and secure the release of detained parties. Lawyers providing legal aid at Dulles report that CBP officials have begun “very quietly and quickly” handcuffing detainees and moving them off-site to bypass the court order’s requirement of access to counsel at Dulles.

If these conflicts are indeed resolved in courts — the alternative, barring a presidential mea culpa, would be for Congress to pass a law overruling Trump — the questions ahead are difficult, in part because there are few cases to guide courts, but not particularly complicated.

While the president does have plenary power with respect to foreign affairs and international relations, the Supreme Court has held that a president’s power vis-à-vis immigration derives from Congress. It is Congress, not the president, that decides who can and cannot enter the country. And on this point Congress has been very clear.

Trump grounds his authority in the Immigration and Nationality Act of 1952, which states, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, 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.”

The problem for Trump is that Congress subsequently explicitly barred discrimination by national origin and place of residence, in the Immigration and Nationality Act of 1965. That statute determines that, with a few limited exceptions, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

But the American Civil Liberties Union and Trump’s other challengers, too, will contend with stumbling blocks. One possible hitch: the 1952 law refers to “entry,” whereas the 1965 language addresses “immigrant visa” issuance. That the two phrases correspond to the same concept — lawful admission — seems clear enough, but there are those judges who see glaring disparities in minor differences in wording.

Another potential argument, according to Andrew McCarthy, writing in defense of the order at National Review, is that the 1952 Act’s power to restrict any “class of aliens” is predicated on national security; he claims that Trump’s “class” here is defined by national security — not national origin. The plain language of the order, which refers to a list of countries and includes a promise to add more, defeats McCarthy’s claim, as does Trump’s choice of countries. Most of the 9/11 hijackers hailed from Saudi Arabia; they were led by an Egyptian. Yet Trump did not include either country in his order.

A second argument McCarthy advances, originating in a 1936 Supreme Court decision and revisited in the wake of 9/11 by George W. Bush devotees, has slightly more credibility upon first glance. In that decision, the Court wrote that the president holds “the very delicate, plenary and exclusive power … as the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress.”

Yet McCarthy neglects the historical origin of the concept he cites, as well as its modern fate. When John Marshall coined the memorable “sole organ” concept in 1800, he was likely referring only to the president’s role in implementation, not formulation. Moreover, that extremely compelling phrase was dicta in 1936 — in other words, not binding. When the Bush administration sought to use that ruling to support the use of executive power as a basis for military detention authority, the Supreme Court rejected the argument.

The U.S. has not seen so dramatic — nor so public — a test of the executive power or of the separation of powers since 1952, when President Harry S. Truman attempted to justify the seizure of steel mills on the grounds of national defense. The resultant Supreme Court decision, Youngstown Sheet & Tube Co. v. Sawyer, noted that Congress had declined to authorize government seizures to prevent “work stoppages” in the event of labor disputes and Truman’s claim of military or security necessity did not suffice.

Trump’s order rests on even shakier ground — a superseded congressional statute — and comes up against a stronger counter-argument: Rather than merely declining to bar immigration based on national origin, Congress explicitly banned it. Although many who would support Trump argue that other — including recent — presidents have wielded significant influence over immigration policy, these proponents of the executive order neglect to make a critical distinction: Prior presidents have shaped immigration policy by exercising discretion over the manner of executing Congress’ laws, not attempting to override them.

Unlike an executive order that purports to execute congressional legislation, Trump’s executive order directly conflicts with Congress’ 1965 mandate. That is to say, this executive order is not a matter of calibrating execution or “policymaking through enforcement,” but an effort to usurp another branch of government. Of course, only the judiciary, charged with maintaining the separation of powers, can determine definitively if this is the case. But the Trump administration has already violated the separation of powers with respect to the judiciary, as DHS defies judicial orders.