For most Americans, news reports regarding the lawsuits filed and legal challenges made to President Trump’s executive orders are confusing. Is a President permitted to make decisions on some matters and issue an executive order without Congressional approval? If so, what kinds of matters are they, and are there any rules a President must follow when issuing executive orders?
Let’s use the example of President Trump’s executive order banning travel from 7 middle eastern countries to the U.S. which has caused so much controversy and so many court battles. The government lawyer’s position is that this order concerns a question of foreign affairs, and that this is an area that Congress has already delegated the authority for the President to make determinations regarding foreign affairs. As a result, the government lawyer argues that the U.S. courts have no authority to look behind the President’s determinations. This is strictly within the President’s authority.
At the hearing in Seattle on the lawsuit brought by the States of Washington and Minnesota against this executive order, Federal Judge James Robart stated that the executive order has to be rationally based, i.e. grounded in facts as opposed to fiction? and that he did have the power to make the determination.
Jeffrey Rosen, the President and CEO of the National Constitution Center in Philadelphia, was recently interviewed by National Public Radio, where he was asked if this was correct, whether the President was constitutionally required to issue orders which must pass Judge Robart’s “fact or fiction” test. Rosen responded that this was correct, that the U. S. Constitution requires that all laws be rational, even when they are in response to the most dramatic challenges relation to national security. He pointed to the famous (many consider infamous) case of Korematsu v. the U.S., the law which required the internment of Japanese-Americans shortly after the beginning of World War II. Even in that case, the justices of the Supreme Court were required to consider the judgment of the U. S. military that Japanese-American citizens posed a threat to the U.S. They did uphold that judgment, despite a fiery dissenting opinion by Justice Murphy that the actual “evidence” presented by the government was “made-up justifications.” In the same case Justice Robert Jackson said that for a court to sustain unconstitutional orders under the guise of assuming that they’re reasonable is like a “loaded gun” which would legitimize racial discrimination.
In the Korematsu case, it turned out, the government failed to disclose a naval intelligence report which said that Japanese-Americans posed a minimal risk which could be handled individually, so all of the facts were not presented properly to the court. Looking back in American history, going back to the blowing up of the battleship Maine in Havana Harbor to the Gulf of Tonkin incident during the Vietnam War to the nuclear weapons that Saddam Hussein was supposedly developing, the NPR interviewer asked Rosen if the court second-guessed the government, would the court in effect be taking control of U.S. foreign policy? Rosen responded that that was a legitimate concern, but the executive order must still pass some constitutional test, and the key test of constitutionality is, is there some basis for them in fact? The government is required to show facts which explain the rational basis for the order. If the Supreme Court justices concluded that there was no rational reason for President Trump to choose these seven countries to exclude travelers from, Rosen said he could imagine both liberal and conservative justices of our Supreme Court might vote to strike the order down.
It’s going to be interesting to see what happens