March 27, 2017

Executive Orders



The topics of executive orders and presidential authority over international border crossings have been much in the news as of late. President Trump signed Executive Order 13769 (Travel ban #1) on Jan. 27, 2017. After enforcement of that order was stayed by a nationwide federal court ruling, on March 6, 2017, President Trump issued a second executive order (Executive Order 13780) (travel ban #2). Two subsequent federal court decisions, both issued March 15, stayed enforcement of the new order (which had been slated to go into effect March 16). Below are resources that shed some light on executive orders, the two recent travel ban orders, and the legal rulings and challenges connected with the recent orders.




Browse the Resources Below
General FAQs on Executive Orders
FAQs on Executive Order 13769
FAQs on Executive Order 13780
Classroom Connections
Primary Sources and ABA Resources




General FAQs on Executive Orders



Q: What is an Executive Order?

A: Executive orders are issued by the President of the United States, acting in his capacity as head of the executive branch, directing a federal official or administrative agency to engage in a course of action or refrain from a course of action. They are enforceable to the extent that the represent a valid exercise of the President’s power (i.e. the action must be within the president’s constitutional authority).


Q: Where are Executive Orders mentioned in the U.S. Constitution?

There is no specific provision in the United States Constitution for Executive Orders. However, Section 1 of Article II (the Executive Power) is generally viewed as granting authority for such orders. Section 1 says simply: “The Executive Power shall be vested in a President of the United States of America.” Sections 3 and 4 of Article II provide potential limitations on executive action (including Executive Orders) in stating that the President shall “take Care that the Laws be faithfully executed” and in providing for impeachment and removal of the President in cases where the President is convicted of “Treason, Bribery, or other high Crimes and Misdemeanors."


Q: How long have Executive Orders been used?

A: Every President since George Washington has issued executive orders. During the last 50 years, presidents during their time in office have issued from a high of 381 Executive Orders (Ronald W. Reagan, 1981-1989) to a low of 166 (George H.W. Bush, 1989-1993). Franklin D. Roosevelt (1931-1945) issued more Executive Orders that any other President at 3,522. Five of those orders were overturned by the U.S. Supreme Court in 1935.


Q: How do you end or overturn an Executive Order?

A: The President who issued an Executive Order can revoke it. Likewise, an incumbent President has the power to revoke an Executive Order issued by a predecessor. Congress also has the power to overturn an Executive Order by passing legislation that invalidates it. (The President, of course, may veto such legislation, in which case Congress may override the veto by a two-thirds majority). Congress could also effectively thwart an Executive Order calling for an action that requires funding by using its power of the purse to deny the necessary funding. Finally, the courts have the power to stay enforcement or ultimately overturn an Executive Order that is found to be beyond the President’s constitutional authority.


Q: What are the President’s legal options if a judge finds an Executive Order invalid or enters a stay temporarily barring enforcement of it?

A: The President may fight the ruling in the courts, including to go through the appeals process. In the case of a federal district court judge, the appeal will go to the U.S. Circuit Court in the judicial circuit in which the federal court sits. Ultimately, the President may seek U.S. Supreme Court review (although the Supreme Court can decide whether or not it wants to hear the case). If different circuits come to different conclusions on the validity of an Executive Order, it is more likely the U.S. Supreme Court will grant review to avoid confusion. The Department of Justice, which reports to the Attorney General, generally represents the President in these proceedings.



<hr><hr>




FAQs on Executive Order 13769 (Issued on January 27, 2017)



Q: What does Executive Order 13769 do?

  • Suspends for 90 days the entry of aliens from seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen). Aliens is a legal term to describe non-citizens, including visa holders and lawful permanent residents (greencard holders);
  • Suspends for 120 days the United States Refugee Admissions Program;
  • Directs the Secretary of State, upon resumption of the refugee program, to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality;
  • Suspends indefinitely the admission of Syrian refugees;
  • Allows the Secretaries of State and Homeland Security to make case-by-case exceptions to these provisions “when in the national interest”;
  • States that situations in the national interest include “when the person is a religious minority in his country of nationality facing religious persecution.”


Q: What was the immediate impact of the order?

A: Thousands of visas were immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained.


Q: Why did enforcement of the order suddenly stop nationwide?

A: Three days after the order went into effect, the state of Washington (later joined by Minnesota) filed suit in the U.S. District Court for the Western District of Washington, challenging the order. The suit alleged that the executive order unconstitutionally and illegally stranded residents abroad, split their families, restricted their travel, and damaged the state’s economy and public universities in violation of those states, of the First and Fifth Amendments, and a number of federal laws including the Immigration and Nationality Act, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. Pointing to campaign statements by the president, the suit also alleged that the Executive Order was truly intended to enact a “Muslim ban.” The states sought a temporary restraining order (TRO) to stop enforcement of the Executive Order. U.S. District Court Judge James Robart granted a nationwide TRO.


Q: What does a TRO mean?

A: As its name implies, a temporary restraining order puts a temporary stop to an action that may cause permanent damage that cannot be repaired (known legally as “irreparable harm”) while the litigation process plays out. For a judge to issue such an order, the party who wants it must show:


  • there is a likelihood of irreparable harm if the action is not stopped;
  • the balance of harms favors the party asking for the TRO;
  • there is a likelihood that the party asking for the TRO will succeed on the merits when the court has time to review all the facts;
  • and public interest favors granting the TRO.


Q: Can a TRO be appealed?

A: Typically no, but in extraordinary cases (such as staying an Executive Order impacting thousands of travelers and millions of people) it can be. Appeals from a federal trial court go to an U.S. Circuit Court in the federal circuit where the trial court that issued the order or decision sits. In the case of Washington, that is the Ninth Circuit. The case was assigned to a three-judge panel to determine whether to keep the TRO in force.


Q: What arguments did the federal government make against the TRO?

A: The federal government argued that the states lacked standing (meaning they aren’t the correct party to bring the challenge – see below for more information); that the federal courts lacked constitutional authority to review Executive Orders on immigration policy, particularly when they are motivated by national security concerns; and that the states were unlikely to succeed on the merits of their constitutional claims.


Q: What is standing?

A: In order to bring a legal suit, a party must have what is known as “standing.” Standing means that the party has been, or may be, harmed. Attorneys representing the federal government argued that Washington and Minnesota lacked standing because the Executive Order was not directed against them, but instead pertained strictly to U.S. immigration policies and entry policies for the seven specific countries. The states argued that the order harmed their universities by prohibiting international faculty, students, and visiting scholars from traveling to and from the affected countries. The states also argued that these injuries gave them the right to assert the constitutional rights of these individuals under the “third party standing doctrine.”


Q: What were the states’ arguments against the Executive Order before the Ninth Circuit?

  • The order violates due process rights by denying reentry to certain lawful permanent residents and non-immigrant visa holders without notice or an opportunity to be heard;
  • The order violates constitutionally protected liberty interests by denying certain lawful permanent residents and non-immigrant visa holders the right to travel abroad and then re-enter the United States;
  • The order violates statutory procedures for refugees seeking asylum and related relief to the United States;
  • The order violates the Establishment Clause because it was intended to disfavor Muslims.


Q: What did the federal government argue to overturn the TRO?

  • The TRO is overbroad because it applies to classes of aliens who are not entitled to the rights that the states’ assert and because it prevents application of the Executive Order to aliens that have no connection at all to Washington and Minnesota.
  • The TRO is not necessary with respect to lawful permanent aliens because the executive branch had since clarified that the order did not apply to them.


Q: How did the Ninth Circuit panel rule?

A: The three-judge panel of the Ninth Circuit rejected the federal government’s arguments that courts lacked authority to review Executive Orders on immigration policy and that the states lacked standing to bring the constitutional claims. The court went on to observe: “The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.”


Q: What happens next?

A: The TRO is currently slated to stay in place while the U.S. District Court considers the case further. The federal government has a number of options, including: appealing the decision of the three-judge panel to the full Ninth Circuit (called “en banc review”), seeking U.S. Supreme Court review, or arguing the merits of the order to the trial court while the TRO stays in place.

The Trump Administration has also discussed issuing a new immigration-related executive order that could accompany or supersede Executive Order 13769.






FAQs on Executive Order No. 13780 (Issued on March 6, 2017)



Q: What are some of the key differences between the first executive order (No. 13,769, issued Jan. 27, 2017) by President Trump and the second executive order (No.13,780)?

A: Key differences in the new order include:


  • Providing additional justifications for why the new provisions are necessary, as well as a statement that the order does not intend religious discrimination;
  • Limiting its application to six, rather than the seven Muslim-majority countries the first order applied to (it does not include Iraq); and
  • Adding several exceptions that were not made clear in the previous order, notably, it excludes lawful permanent residents and allows for case-by-case waivers to be issued.


Q: What does the March 15 Hawaii decision do?

A: The ruling, by U.S. District Court Judge Derrick Watson, put a nationwide stop to President Trump's 90-day ban on travel from citizens of six Muslim-majority countries -- Iran, Libya, Somalia, Sudan, Syria and Yemen and his 120-day pause on refugee resettlement. The decision also placed a hold on the government's attempt to cap refugee resettlement and the compiling of a series of government studies and reports on the vetting processes for refugees and foreign visitors.


Q: How does the ruling from Hawaii differ from the March 15 court ruling in Maryland, which also stayed on the travel ban from the six countries?

A: U.S. District Judge Theodore D. Chuang declined to rule against the pause and cap on refugees. He limited his ruling strictly to the 90-day travel ban.


Q: What is the Constitutional basis for the Hawaii federal court ruling?

A: Citing statements by President Trump and his surrogates during and after the campaign, Judge Watson concluded that a reasonable, objective observer would view even the executive order as “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.” Thus, Watson found the plaintiffs had demonstrated a strong likelihood of success on the merits of their Establishment Clause claim, and that not staying the order would result in irreparable harm. Judge Watson found unpersuasive the changes made in the second order to counter the Establishment Clause concerns raised by the first order.


Q: What is the Constitutional basis for the Maryland ruling?

A: After reviewing the statements of the President pertaining to the travel ban over time, Judge Chuang also found the plaintiffs likely to prevail on an Establishment Clause claim. "These statements, which include explicit, direct statements of President Trump's animus towards Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible, President Trump's promised Muslim ban," Chuang wrote. Chuang went on to write, “"In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban. While the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban.”



Q. Have any U.S. District Court Judges issued rulings in favor of the Trump Administration's position?

A. Yes. On March 24, 2017, Virginia U.S. District Court Judge Anthony Trenga in a 32-page decision concluding that the modifications in the order were sufficiently different from the first order that it should be allowed to go into effect. However, enforcement of the order remains stayed pending the appeals of the other two court rulings granting nationwide stays.   

<hr><hr>


Classroom Connections


Have students construct a written argument that addresses the compelling question, is the recent executive order on immigration effective public policy? Students should research at least two of the supporting questions to help craft their argument.


Students should be sure to use specific claims and relevant evidence from credible sources while acknowledging competing views.


Compelling Question


1. Is the recent executive order on immigration effective public policy?



Supporting Questions:


1. Will the executive order help prevent future terrorist acts, its stated purpose?


2. Is the executive order constitutional?


3. Does the executive order represent the ideals that the United States stands for both domestically and globally?


4. How will this executive order impact the American economy?





Resources

Primary Sources

Executive Order 13769 (Jan. 27, 2017)
Video arguments on TRO and Judge Robart’s bench ruling granting it (Feb. 3, 2017)
Judge Robart’s written opinion on the TRO (Feb. 3, 2017)
Audio of oral arguments before 9th Circuit panel (Feb. 7, 2017)

Written opinion of 9th Circuit panel keeping TRO in force (Feb. 9, 2017)


Executive Order 13780 (March 6. 2017)


Judge Watson Ruling Staying Enforcement of Order 13780 (Hawaii, March 15, 2017)


Judge Chuang Ruling Staying Enforcement of Parts of Order 13780 (Maryland, March 15 2017)


Judge Trenga Ruling Denying Stay of Order 13780 (Virginia, March 24, 2017)   


Resources from the ABA

What is an Executive Order?
Understanding Injunctions
Presidential Powers and Their Limits


ABA Statements and Policies
Statement from ABA President Linda Klein
Resolution to Withdraw Executive Order 13,769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” dated January 27, 2017