On the Constitutionality of Trump’s Immigration and Refugee Ban

On January 27th, President Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order bars Syrian refugees from entering the United States indefinitely, and it bars refugees generally for 120 days. The order also blocks citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days. And chaos ensued. Scenes from airports across the country were heart-breaking, as people were kept from reuniting with relatives; protesters galvanized; the acting Attorney General was fired for instructing the Department of Justice not to enforce the order. There are at the moment 13 lawsuits challenging the order, with many more sure to come.

Unsurprisingly, polling on the issue breaks down along party lines. According to a recent Reuters poll, 51 % of Republicans strongly agree with the actions of their president; 53% of Democrats strongly disagreed.

One question looms large above all others: could these bans possibly be constitutional?

It depends on who you ask. The bans are either in violation of the 1st Amendment’s Establishment Clause, or else they fall within the plenary power doctrine, an area of the law that is understood to confer upon the political branches almost unfettered power, free from judicial review. 

Thinking about the question in this way, however, misses the mark. 

What do we mean when we ask whether something is unconstitutional? We generally use the term in an ontological sense, as if the Constitution exists in Platonic form and we can both decipher its meaning and apply to any situation. Thus, to the question whether the President’s actions are constitutional, we turn reflexively to the document and the prior meanings we ascribe to it. The courts need only recognize and apply these prior meanings. 

But this is not the right question. The question is not whether existing law stands in the way of the President’s actions. Rather, the question is whether the federal courts will choose to stand up to the President. If and when they do, the rest is easy. 

I am not encouraged. Think about the political context, and talks of nuclear option for the Senate confirmation process. Think also about the firing of Acting Attorney General Sally Yates, and the President’s response to the court decisions that followed his executive orders. Think about Terror. The War on Terror.

Will the court’s stand up to the President? I don’t know. What I do know is that nothing in the Constitution will help federal judges answer that question.

The Republicans turn to their favorite punching bag once again: the courts

It appears, if the editorial page of the New York Times is to be believed, that Newt Gingrich is at it again. I figured as much. His apparent conversion to moderate politics – I have in mind here his recent position on illegal immigration – was too good to be true. In his defense, running for the Republican nomination is not easy. Lots of crazies out there. Ask Romney. 

Here is the latest. According to Gingrich, Congress and the President must begin to push back on the Court, Cooper v. Aaron and judicial supremacy be damned. Among the tools at the politico’s disposal are the power to strip jurisdiction; impeachment; and the right to abolish specific judicial seats. The affected institutions could also ignore rulings they don’t like. 

The Times’ editors find this approach distasteful. As a general matter, they argue that Gingrich’s attack on the courts takes “the normal attack on the justice system to a new low.” They equate his criticism to “McCarthyist tactics” designed to “smear judges.” Gingrich’s view that the political branches must stand up to the court is described as “twisted.” They close with the following: “His ideas would replace the rule of law with a reign of ideology. If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches.” 

I have three reactions, and a better response to Mr. Gingrich. 

What's Wrong with Judicial Diversity?

President Obama is nominating women and minorities to the federal bench in unprecedented numbers. But apparently, not everyone is happy about this newfound commitment to judicial diversity. According to Stephen Presser, professor of legal history at Northwestern, “[w]hen you make law representative of America, you are undermining the objective” of a fair and impartial judiciary. . . . What you’ve got here is the opposite of John Roberts’s notion that judges ought to be umpires." To "send a message of inclusiveness . . . is a dangerous move, and it makes the court more political than it needs to be."

Now, I have been interviewed often enough to know that statements can be taken out of context, words twisted, and who knows what else. And yet, this statement, standing alone, comes off as nothing short of bizarre, particularly coming from a law professor. You don't even have to agree with me that judicial diversity in fact furthers the value of judicial independence in order to find this statement puzzling. Assume that we agree that judicial diversity "make[s] law representative of America"? I would have assumed that this representativeness was a good thing, particularly in light of studies of judicial behavior that posit judges as influenced by myriad factors, including their politics and experience. How would recognizing what judges in fact do undermine in any way the fairness and impartiality of the judiciary?

Worse, I had really thought that Roberts' analogy of judges as umpires was nothing more than a rhetorical device for the moment, aimed at those on the Senate and the public at large predisposed to agree with him. Nobody, I thought -- and I do mean nobody -- with any experience reading cases and studying courts could seriously believe the analogy had any basis in reality.

Clearly, I was wrong.

Finally -- and maybe I am being unfair on reading the statement this way -- but how could sending a message of inclusiveness ever be "a dangerous thing" and make the judiciary "more political than it needs to be"? This is one paper from Professor Presser, defending this conclusion, that I would love to read.

Let me see if I understand: appointing judges in the mold of Alito and Roberts furthers judicial fairness and impartiality, but appointing judges in the mold of Sotomayor and Kagan is "dangerous"?

I am almost speechless.

The Birthers Come to Court . . . then what?

Was President Obama born in Hawaii, or wasn't he? And if he was, why can't he produce an original birth certificate?

I do not know where President Obama was born. Nor do I care.

But that is not the real question posed by those who challenge President Obama's birth status.


Assume for the purposes of this post that the "Birthers" are right and President Obama was not born in Hawaii as he claims. This would mean that he is not a "natural born citizen," and thus ineligible for his current office as required under Article II ("No person except a natural born citizen . . . shall be eligible to the office of President").

Would a federal court accept such a challenge to the president's status? No, really: would the U.S. Supreme Court remove a sitting President on the basis of a challenge to his citizenship?

Let me ask a different question: what if a recently elected President and Vice-President were from the same state? Under the Twelfth Amendment, they cannot both be elected. Assuming two candidates were in fact elected, would a court remove a newly elected Vice-President from office due to his residency status?

I seriously doubt it.

At the end of the day, you have to love the political question doctrine.