What is an Executive Order (EO)?
We don’t have a clear definition of EOs. The Framers of the Constitution did not define them and Congress hasn’t done so either. The Constitution does not specifically say that presidents can issue EOs. Nonetheless, this is an old practice and it has been done by Presidents since the beginning of our Republic. EOs are basically orders by the President that have the force of law when they are based on the authority that the President has under the Constitution or federal laws.
Strong arguments can be made to support the President’s authority to issue EOs. One of these arguments is that Article II, which talks about the executive power, confers all of the executive power on the President. Hence, presidents can issue EOs because the Constitution gives them all of the executive power and assigns them the responsibility of taking care of the laws and making sure that they are well executed.
Of course, we have three branches of government: judicial, executive and legislative. The judicial branch interprets and clarifies the laws. The President makes sure that the laws are faithfully executed. And Congress writes the laws. Because EOs are arguably a form of “law-writing,” it is important to have limits on the President’s power to issue those EOs. If not, the President would technically be allowed to legislate – which is the legislature’s job.
Depending on the subject matter of the EO, the President will have more or less power to issue it. In other words, when the President issues an EO that deals with a power that the Constitution clearly grants to him or her, then that EO will be pretty solid. But if the EO deals with a power that the President doesn’t have (or that he doesn’t exclusively have) under the Constitution or federal laws, then the EO might be in trouble.
What is the lawsuit about?
The controversial immigration EO issued by President Trump makes several changes to the policies by which non-citizens may enter the United States. The states of Washington and Minnesota sued the federal government (Trump, Secretary of State, and others), claiming that the EO is unconstitutional because, among other things, it does not guarantee due process rights to individuals affected by it and it violates the Constitution by treating one religion (Christianity) better than another (Islam).
What is due process? Our Constitution prohibits the Government from depriving individuals of their “life, liberty, or property without due process of law.” The Government can deprive people of these things… but it has to first give individuals notice and opportunity to respond.
What about religion? The First Amendment prohibits laws that have a religious purpose (instead of a secular purpose) as well as laws that officially prefer one religion over another. And the Equal Protection Clause does not allow the Government to discriminate among people based on religion.
What did the appeal courts decide?
The temporary restraining order will remain in place. The Court also suggested that the EO will likely be found to be unconstitutional.
The President’s argument was that he had full authority on immigration and national security issues and for that reason the courts could not review his decisions on that. The court said, no way, you can’t remove the judicial branch from the equation! We are a government of three equal branches and even though the President does deserve deference on national security issues, the courts still can review the President’s actions to make sure that they comply with the Constitution.
BEWARE: This EO isn’t dead! The ruling of the 9th Circuit (which is the federal APPEALS court that covers states like Washington and California) was merely answering a narrow question of whether to reverse the lower court’s temporary restraining order (TRO). A TRO is sort of an emergency order to stop something from happening until the merits of the case are decided (which could take years or many months). So the lower court granted the TRO and temporarily blocked the travel ban. Then President Trump appealed and the 9th Circuit agreed with the lower court and kept the temporary prohibition on the travel ban (TRO) in place. Now we have to wait for the merits of the case -whether this EO is constitutional or not- to be decided in a lawsuit that will take more time.
What will happen next?
Right after the court’s ruling, Trump tweeted: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
That is a confusing tweet and makes us doubt whether our President understands how the government works. First of all, this decision was made by a court (for the second time), so it is unclear why he says “see you in court.” If he means the Supreme Court, there is a chance that the Supreme Court won’t take the case, as it is not required to take all the cases that request a review.
If the Supreme Court agrees to hear the case, I think that they will reach the same conclusion that the appeal courts just did. This is mainly because courts don’t like to be undermined and the Justices in the Court won’t be too happy to hear the Government argue that courts have no say on this. If the Supreme Court doesn’t take the case, then this decision of the appeals court will become final.
Lesson of the week?
We have a Constitution. If you want to run for office, study it well.