Former Prosecutor. Powerful Defense Advocate. Certified in the Area of Criminal Law

The Law Office of Gregory Hagopian

This is not a political post. I do not intend to share my opinions on the wisdom or lack thereof of any particular action taken by any particular politician. Below, rather, is a fair and academic explanation of the legal issues that have been raised in regards to President Donald Trump's Executive Order 13769, titled "EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES."

What is an Executive Order?

To understand what an Executive Order is, it is necessary to first understand the structure of the American Federal Government created by the United States Constitution. The United States Federal Government is made up of three branches: The Legislative, the Executive, and the Judicial.

The Legislative Branch of government is made up by the members of Congress (both the House of Representatives, and the Senate) and all of their employees. The job of the Legislative Branch of Government is to pass laws (to legislate). Article I of the Constitution sets out the powers of the Legislature.

The Executive Branch of government is made up by the President and all of his employees.The primary job of the Executive Branch of Government is to implement (or "execute") the laws passed by Congress. Additionally, however, the President is also Commander in Chief of the United States Military and is given the power to nationalize the state militias (the National Guard). The president also has the power "with the advice and consent of the Senate" to make Treaties, and to appoint Ambassadors and Federal Judges, including Supreme Court Judges. Article II of the Constitution sets out the powers of the President.

The Judicial Branch of government is made up of the Supreme Court, and whatever other lower federal courts Congress creates (and it has created quite a few). The Job of the Judicial Branch to decide:

[A]ll Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;...

In short, it is the job of the Judiciary to decide how the Constitution and the Federal Law made under the Constitution, apply in lawsuits that people file and bring before them.

NOTE: It may be worth noting at this point that our Judicial System borrows from the British a method of legal interpretation known as "stare decisis." What this means is that every time a court decides a case, their decision becomes a "precedent" that all lower courts are bound to follow in similar circumstances.

EXAMPLE:

Let us pretend that Congress passes a very simple law saying that every person living in the United States who has black hair will receive a thousand dollars every year. Once the law is written, the job of the Legislative Branch of Government is done. The Executive must now make that law a reality. But how? Congress did not say how black haired people would be located. It did not specify how the money would be distributed (by check drawn of the U.S. Treasury? By cash delivered by clown car?). It also did not specify how, or by whom, the determination is to be made whose hair is "black" and whose hair may simply be a dark shade of brown. The Executive has the enormous job of deciding all of these things on its own in order to make the pronouncement of Congress a reality for the American People.

This is where the Executive Order comes in. An Executive Order is nothing more than the President of the United States telling his employees how to do their jobs. In our case let us suppose that the President of the United States makes up an Executive Order (titled "Executive Order on The fair determination of Hair Color) where he decrees that in order to determine whether or not a person's hair color is black, his employees will take a hair sample from each applicant, and test it under a microscope next to a swatch of black paint.

This is NOT how the President (or any other leader of a large organization) usually manages. The usual order of things is that the President delegates responsibility for executing the laws to Secretaries, who delegate to Undersecretaries, who delegate to bureaucrats, who delegate to managers, who actually hire people to get things done.

The President only makes an Executive Order, therefore, when the issue is important enough to get his attention. Seen in this way, the Executive Order may be unusual, but it is a wholly appropriate way for the President to do his job. They are numbered in order. There have been nearly 14 thousand executive orders signed so far.

Now imagine that someone with blond hair sues the Federal Government alleging that this new law is invalid as being contrary to the Constitution of the United States of America. Let us assume that they claim that this new law violates the Equal Protection Clause of the 14th Amendment.

The Equal Protection Clause says (in layman's terms) that the Government cannot discriminate against some people, sometimes. A long and complex line of cases out of the Supreme Court of the United States has laid out various tests for determining whether a law discriminates against a person. If the discrimination is based on an impermissible class designation (race, religion, gender, sexual preference) the government will need to meet a standard referred to as "strict scrutiny." Under strict scrutiny, unless the government can show that the law fulfills a really big national need that cannot be filled any other way, it will be struck down. Our hypothetical law does not discriminate based on one of these "protected classes." This law, which is discriminatory, would therefore probably be subjected to a "rational basis" test by the court, whereby the much easier question is asked: "Is there any good reason for the government to do this?" In our case, even under a rational basis test, the answer is probably no, and the Supreme Court would probably determine that the Constitution does not allow the Congress to make this kind of law.

So what? You may ask. Who cares about either the Constitution or the Supreme Court thinks? The reason these things matter is because of the Supremacy Clause, and a long line of Supreme Court case decision beginning with a case called Marbury v. Madison.

The Supremacy Clause:

The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land.

Marbury vs. Madison:

In 1803, the Supreme Court made a determination, for the first time, that an act of Congress (the Judiciary Act of 1789) was contrary to the United States Constitution. The Court explained that because the Constitution is the highest law of the land, and the Constitution sets the United States Supreme Court as the highest authority on what the Constitution means, that the Supreme Court had the power to declare acts of government that went against the Constitution to be void.

HISTORY LESSON OVER (mostly) Let's GET BACK TO EXECUTIVE ORDER 13769

What does this Executive Order Say?

Executive Order 13769, signed on January 27, 2017, gives a number of different orders to Executive Employees. Some are more controversial than others and will make up the bulk of our discussion. Those items are bolded and underlined below. In sum, the Order says that:

· The Secretary of Homeland Security, the Secretary of State, and the Director of National Intelligence need to get together and decide what kind of additional information we need to get from different countries in order to determine that their people are safe to allow into the United States.

· A report and recommendation on the above will be given to the President on February 27, 2017.

· "Immediately" after this report is prepared those countries who do not give us the information we think we need to their people who wish to travel here will be told that they need to start doing so.

· 60 days after the above request, a list of countries who are not complying with our requests for information about their people who wish to travel here will be included in a further Executive Order barring the entry of people from those countries from entering the United States.

· Additional countries may be added as deemed necessary for National Security.

· In addition to the above, The Secretary of Homeland Security, the Secretary of State, and the Director of National Security need to get together to find a better way to screen immigrants in order to keep out criminals and terrorists. They need to submit reports 60, 100 and 200 days from the date of this order.

· EFFECTIVE IMMEDIATELY - The United States will not accept any refugees, at all, from anywhere, for 120 days. The Secretary of Homeland Security, The Secretary of State, and the Director of National Security need to get together and find a better way to screen refugees in order to keep out criminals and terrorists.

· In 120 days we may resume taking refugees from places where the Secretary of Homeland Security, The Secretary of State, and the Director of National Security all agree that we can adequately screen refugees from.

· If we decide to take refugees in the future, we shall give priority to members of minority religions who are being persecuted.

· A "biometric" entry-exit scanning/tracking system shall be created.

· The government shall begin collecting, and periodically making public, information on all crimes committed by foreigners, and the costs of any refugee program we implement.

· EFFECTIVE IMMEDIATELY, all people coming out of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen, who are not United States Citizens, or traveling on Diplomatic Visas, are prohibited from entering the United States for any purpose for the next 90 days

We will now discuss the bolded items above. As I said at the beginning of this article. This is a not a political writing. I do not intend to discuss the wisdom or error of the political decision to do the things listed. This is only an analysis of the applicable LAWS relating to that decision.

Question 1 - What authority does the President have to keep out immigrants of his choosing?

In order for the President to have the authority to do the things above, he must be granted that authority either directly by the Constitution, or by the passage of laws written by Congress.

Does the Constitution Give the President Sole Authority Over Immigration? (No it does not.)

We should begin with the question of so called "plenary" power. It has been argued by some that the Constitution gives the President of the United States power to "deal with" the rest of the world, including making all decisions on immigration. This line of argument states that Congress has no ability to legislate the President's powers, and the President requires no permission from Congress to make any determination about who can and who cannot come to the United States for any purpose.

This argument is absurd. Nowhere in Article 2 does it say that the Executive Branch has sole authority to deal with the outside world. In fact a cursory reading of Article 2 will show otherwise. The Executive cannot declare war without Congressional Permission, it cannot sign Treaties without Congressional Permission. It cannot even assign Ambassadors without Congressional Permission. The idea that there is some kind of hidden assumption, therefore, that the Executive has powers to make any kind of regulation regarding immigration that it sees fit is absurd. Making this argument slightly more absurd is the fact that Article 1 SPECIFICALLY gives Congress the right to regulate "Commerce with foreign Nation" (Article 1 Clause 3) and to establish a uniform Rule of Naturalization (IE to make people citizens).

We have NEVER operated as a Nation with the idea that this was not the case. The idea of "plenary" power by the President to make whatever immigration rules he wants is a time waster of an argument promoted by people who would make all President's kings because they happen to like the current one and cannot think past the end of this administration. We need to move on to more serious issues.

Has President Been Given Authority by Congress to bar immigrants he doesn't like? - Yes and no.

The first Federal Law on Point is found in the code at 8 U.S.C. 1182(f), and was passed as part of the 1952 Immigration and Nationality Act. It states:

(f) Suspension of entry or imposition of restrictions by President

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.

This law, clearly, is written in extremely broad terms.

Making things more complicated, however, is the fact that in an Amended Immigration and Nationality Act, a.k.a. the Hart-Celler Act (An Act to amend the Immigration and Nationality Act, and for other purposes), was passed by Congress and signed into law by President Lyndon B. Johnson in 1965. The Codification of that act can be found in Section 1152(a) of Title 8, U.S. Code, which states that

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.

Some people would (and have) argued that the 1965 law should trump (no pun intended) the 1952 law because it is more recent, and that the Congress, knowing that this other law was in existence, must have intended the more recent law to trump the less recent law.

The first problem with this argument is that the Congress in 1965 easily could have simply repealed 8 U.S.C. 1182(f) if that had been their intention. The fact that they did NOT do so implies that they did not intend that this law be repealed.

The second problem is that 1152(a) is much less broad in who it applies to than 1182(f). 1182(f) applies to "aliens" meaning all noncitizens. 1152(a) only applies to "immigrant visas." An immigrant Visa is a permission to enter the United States with the intention of residing here permanently. Immigrant Visas are a small fraction of the total Visas issued. A visa is simply a permission slip to enter the United States for any purpose. Most visas are worker visas, student visas, and other forms of temporary visas. The nondiscrimination requirements of 1152(a) does not apply to any of those.

Several generations of legal decisions have counseled that seemingly conflicting laws should be interpreted, when possible, by reading the laws in question in such a way that they do not contradict. Here, that does appear to be possible. First, the Hart-Celler act does not apply to most people coming into the United States, but only those coming on Immigrant Visas. As for Immigrant Visas, it is possible to read 1152(a) not as a repeal of 1182(f), but as a restriction on it. The President may restrict Immigrant Visas to the United States, but he may not do so based on the factors listed in 1152(a), including nation of origin.

What's the verdict?

The end result of all this spilled ink? In the not so humble opinion of this poor country lawyer, the President does not have legal authority vested in him by Congress to make the orders he made inasmuch as they apply to Immigrant-Visas, but does have legal authority vested in him to make the orders inasmuch as they applies to Non-Immigrant Visas (which are the vast majority).

This is, of course, based on the law as it stands today. The law can always be modified by Congress to either broaden or restrict the powers of the Executive to make immigration decisions.

Question 2 - Does the Constitution allow the United States Government to do the things in the Executive Order?

The question of legal authority granted by Congress does not end the discussion. The next question that must be asked is whether or not the actions called for in the Executive Order violate the Constitution of the United States. If they do, the Congressional Authority given to the President is meaningless, because that Congressional Authority itself is void.

Opponents of the Executive Order have brought two major arguments that it should be considered unconstitutional; 1. That it violates the First Amendment's Establishment Clause, and 2. That it violates the 14th Amendment's Equal Protection Clause.

1. Establishment Clause:

The First Amendment states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

The Executive Order at issue is certainly not an establishment of religion. In fact nowhere in the text of the Executive Order are either the words "Christian" or "Muslim" ever mentioned. Even if we assume, as seems likely, that the idea of this Executive Order is to create the "Muslim Ban" that doesn't mean that the First Amendment is being violated. Banning a particular religion does not create an "establishment" of religion. Anti-Muslim is not a religion.

Would such a ban prohibit the Free Exercise of Religion? This is a harder question to answer. We must first ask another question; "Who is protected by The United States Constitution?" Many supporters of the Trump Administration dismissively say "Our laws don't grant any benefit to anyone who isn't within our nation." But that might be looking at the question in the wrong way. The issue (at least at first glance) shouldn't be whether or not a person in Syria is protected by United States Law, but rather whether or not the Federal Government is given the power by the Constitution to take any particular action.

One might say "The United States Government cannot protect the rights to freedom of speech, or the press, or religion, or the right to bear arms, or the right to vote, or a whole plethora of other rights for people in other nations!" That is true. But The United States Government certainly can, and maybe has a duty to, not violate the rights of foreigners, even those living abroad, itself. The United States Government cannot guarantee a person in Yemen Freedom of Speech, but it can decide that The United States Government will not itself violate any Yemeni's Freedom of Speech. We could say the same thing about freedom of religion. The First Amendment was certainly written in wide enough language for this interpretation. The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Nowhere does it say that these restrictions on the power of Congress apply only to acts taken in regard to the people of the United States. Two hundred years of Supreme Court Precedent, however, says that is the case. Our Courts have consistently held that the United States Constitution only protects the rights of people (whether citizens or not) IN the United States. Is this what was intended by the framers of the Constitution? Yes and no. To be blunt, the framers of the Constitution probably could not have imagined that the United States would ever have the power to affect the rights of individuals in other nations.

Does a Muslim Ban violate the 1st Amendment then? The answer, as the applicability of the Constitution to foreign lands is understood today, is No. This order is not unconstitutional under the First Amendment.

2. Equal Protection Clause:

The Fourteenth Amendment states:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Equal Protection Clause is the underlined section of the 14th Amendment. It should be noted that, despite its clear language to the contrary, that the 14th Amendment has (mostly) been made applicable to the Federal Government. There is, however, a problem here.

By its wording the equal protection clause clearly only applies to persons within the jurisdiction of the United States. This leaves out most foreigners living abroad, but It DOES NOT leave out any current Visa Holders, wherever they find themselves. Visa holders have been accepted into the (usually temporary) jurisdiction of the United States. Our laws apply to them. That is what having jurisdiction means.

Does Executive Order 13769 violate the Equal Protection of current Visa Holders? - Probably yes.

We spoke a little bit about different kinds of scrutiny that the Courts subject discriminatory laws to in our hypothetical earlier. Religion is certainly a protected class, as is a race. Nationality... probably isn't. The first question that would need to be asked is whether or not this is a religious based discrimination.

On the one hand, the seven nations on the list are certainly made up primarily of Muslims. On the other hand, there are several Muslim nations (making up the majority of the worldwide Muslim population) that are not on the list. One the first hand, President Trump repeatedly said during his campaign that he would impose a Muslim Ban. On the second hand, the actual text of the Executive Order doesn't mention religion at all.

Executive Order 13769 is certainly not religious discriminatory on its face (meaning according to its own wording). This is not, however, the end of the analysis. The Supreme Court has held several times that facially nondiscriminatory laws can be struck down as violating the Equal Protection Clause when they are intended to, and do, in fact, serve a discriminatory purpose. In this way, certain facially nondiscriminatory laws (such as poll taxes and literacy tests) were struck down in the Jim Crow South.

Is Executive Order 13769 designed to discriminate against Muslims? Yes. No question about it. The rewording of the campaign promise to create a Muslim Ban is a con job.

Does Executive Order 13769 actually discriminate against Muslims? Yes. No question about that either. Muslims are prevented from traveling to the United States, even if they have Visas, and while certainly there is a small group of Non-Muslims whom this ban also applies to (Christians or Jews living in Syria for instance) this is clearly not the target group, nor the group taking the brunt of the Order's impact.

Does a Muslim Ban violate the 14th Amendment then? As it applies to people who hold current Visas the answer is yes. As to everyone else in the world, the answer is no.

NOTE: This suggests a very simple workaround that the current administration could implement to avoid a legal battle... simply rewrite Executive Order 13769 to NOT apply to current Visa holders. If that were to be done, in my opinion, there would be no remaining constitutional issues.

Question 3 - Can an Executive Order be challenged in Court?

Since we have determined that Executive Order 13769 does violate Federal Law as applied to people seeking permanent immigrant status, and violates the United States Constitution as it applies to current Visa holders, the question then arises: Can these people get cases heard by the Courts?

Subpart A. - Does anyone have the standing to sue?

In order to rule on any government action, be it the law itself, or the implementation of the law by the Executive, the Courts, including the Supreme Court, must have a lawsuit filed. In order to file a lawsuit, a plaintiff (the person who files the suit) must have "standing."

"Standing" means that the person or organization (for legal purposes "persons" include groups, including corporations, or even municipal bodies, such as cities and states) is actually being harmed by the government action. In the present litigation, the State of Washington got the ball rolling by filing a lawsuit on behalf of the whole State of Washington, claiming that the State was harmed by Executive Order 13769, because, among other things, it would trap certain Visa holders including permanent residents of the State abroad. It also argued that its universities would suffer from losing students and professors (they showed actual examples of both) from the banned nations.

This is, frankly, a pretty thin basis for standing to a lawsuit. It comes perilously close to the State of Washington saying that they should get standing to sue any time the federal government does anything they think will have a negative impact on anyone in the State of Washington. That is not a good rule. That being said, the Courts have already ruled that the State DOES indeed have standing.

Much to the chagrin of the current administration, the precedent for such broad standing by States was set in the last administration, when several states successfully filed sued against the Obama Administration over the implementation of IT'S immigration policy, which they argued harmed their state by increasing the costs they would bear in illegal immigrants. This boys and girls, is why politics should be kept out of legal rulings. Politics is temporary. Precedent is permanent.

To answer the question: Yes, lots of people have the standing to sue.

Question 3. - Do the Courts have jurisdiction to hear the suits?

The moment that Executive Order 13769 was made public multiple individuals and groups (such as the American Civil Liberties Union or A.C.L.U.) filed lawsuits asking the Courts to deem the Executive Order unconstitutional (and thus void).

The Trump Administration responded to these lawsuits in an interesting way, claiming both that the Executive Order is not unconstitutional (which we have already discussed) AND that the Courts have no basis to hear the lawsuits because Executive Orders are unchallengeable in the Courts.

Subpart A - Is there any procedural bar to filing a lawsuit based on an Executive Order?

No, there is not. This is no different from suing to "strike down" a law Congress has passed. The person filing does not file the lawsuit saying they are suing the "law" or the that they are suing the "Executive Order" they file a lawsuit saying that the Government is planning to harm them and asking the Court to make a ruling that the Government not be allowed to do that. The basis for the request may be because of the law, or Executive Order, is unconstitutional. In lawyer-speak this is called a request for a Writ of Prohibition. The plaintiff asks the Court to stop someone from doing something that will unlawfully harm them. If the resolution to a lawsuit of this type is founded in the fact that the law or government action is itself unlawful, we say in common-speak that the Court "struck down" the law or government action (Including an Executive Order).

Again, this isn't new. Several of the Executive Orders of prior presidents, including those of the Obama Administration, were challenged in Court as unconditional.

Subpart B - Is there anything about the subject of the Executive Order that takes it out of the Jurisdiction of the Courts?

Again no, no there is not. We disposed of the supposed "Plenary Power" over immigration earlier in this article. The whole idea is made up. Again, literally last year and the year before, lawsuits were pending against the Obama Administration regarding its Executive Orders on immigration.

There is, however, a better argument to be made on National Security grounds.

What about the argument that this is a "National Security" issue, and that the President, as Commander in Chief of the Military, has the right to make whatever orders he sees fit to protect the nation from foreign invasion?

This is an interesting, and unfortunately very touchy, subject. As early as the time of Andrew Jackson, the Supreme Court made rulings that the President's use of the military needed to conform to the rules of law as decided by cases brought before the Courts. Unfortunately, when that Court ruled against him, Jackson simply ignored it, saying blithely, "Marshal has made his decision, now let him enforce it." This is today, considered by most people to be one of the black spots on our history.

Thankfully almost ALL Presidents of the United States have shown more respect than Jackson did for the balance of powers between the co-equal branches of government. The Supreme Court, however, has also shown great deference to the President in making Military Decisions, particularly in time of war. There can be little argument, for instance, that the Japanese Internment camps of WWII blatantly violated the Constitutional Rights of those people incarcerated there. The Supreme Court, however, chose not to declare the act as unconstitutional when a lawsuit was filed. Instead, the Court ruled and has become somewhat infamous for so ruling, that all of the protections of the Bill of Rights were subject to revocation when National Security was sufficiently at risk, and that the President should be given wide latitude to decide when that was.

But even this line of thinking (which has, for the last half century, seen a steep decline) recognizes that the Supreme Court has the right to HEAR AND DECIDE the case, whatever deference it may CHOOSE to give to the Executive.

Again, there is simply no question that this Executive Order can be the subject of a lawsuit.

IN CONCLUSION

The issues are complicated. Anyone saying otherwise is trying to sell you (and maybe themselves) a bill of goods. When that Washington post headlines read "Trump's Muslim Ban Obviously Unconstitutional" it is at least severely overstating its point. Likewise, when the President of the United States tweets out that "A bad high school student would know" that his Executive Order was not Unconstitutional, he either displays a woeful lack of understanding of the intricacies of Constitutional Law or a severe overestimation of our American Education System.

In my opinion, based on the issues laid out above, Executive Order 13769 violates Federal Law (The INI of 1965) inasmuch as it applies to people seeking permanent immigrant status, and it violates the United States Constitution inasmuch as it applies to people who already have American Visas. In all other respects, I see no legal challenges.


Every member of the Executive Branch, be it a border guard, the Director of the CIA, or the Secretary of Defense, are all just employees of this one individual, and are subject (mostly) to being terminated at his discretion.

Literally meaning "to stand by decisions" in Latin.