Growing legal fight over Trump travel ban threatens to test Constitution

While law students and lawyer wannabes receive a crash course in advanced civil procedure, presented by the cases ricocheting between the district and appeals courts in the Ninth Circuit, U.S. permanent residents and refugees fleeing persecution have been detained at borders, waiting to hear whether President Trump can nullify hard won entry visas.

More profound, the Washington State attorney general has set the nation on a constitutional collision course between the judiciary and the executive branch. What happened this month is that Washington and Minnesota won a nationwide temporary restraining order (TRO) from the federal trial court, staying enforcement of President Trump’s executive order banning persons from seven predominantly Muslim countries from entering the U.S.

Trump appealed to the circuit court to lift the TRO, tweeting along the way about the “so-called [district] judge” who issued the stay. That seemingly typical Trumpian disparagement went beyond executive branch jawboning about disagreeable judicial pronouncements and dared the federal courts to exercise their constitutional authority. The tweet was no mere insult; it was a dare, plain and simple.

The Circuit Court heard oral arguments by phone Monday afternoon. The legal arguments before the Federal Court dealt mainly with whether the states involved in the case can show irreparable harm and likelihood of success on the merits in a later hearing, but key in the travel ban is that the courts, and the Supreme Court in particular, is the final arbiter of what is constitutional and those complicated issues have been conjoined in many reports about the president’s executive order.

Although the federal trial court has not yet heard the merits of the case, what we heard Monday, had a lot to do with the facts — whether, as Judge Robart in the lower court said, “to determine if the Executive Order is rationally based.”

On the conference call hearing, a large part of the questioning was about the law and the Constitution.

The relevant legal precepts include: The Immigration & Nationality Act of 1965, legislation that bans discrimination on the basis of race, nationality and ancestry, created by Congress to get rid of the old ‘quota’ system; The Establishment Clause of the First Amendment, which prohibits government actions that favor one religion over another and, The Due Process & Equal Protection Clauses of the Constitution.

What many people question is why migrants, refugees, and permanent residents have rights under the U.S. Constitution. So, to the question, do non-citizens have due process rights? Yes, they certainly do, at times.

Stephen H. Legomsky, professor emeritus at the Washington University School of Law said, “The general rule is that every non-citizen who has ‘entered’ the U.S. — lawfully or otherwise – is protected by the due process clause, but sometimes even a non-citizen who hasn’t yet entered can also invoke the due process clause.” In the cases regarding Guantanamo detainees, they were entitled to habeas corpus.

With regard to green card holders, when the executive order was put into effect, some green card holders were detained; later, after much harm was done, the Trump administration clarified that the executive order does not apply to legal permanent residents. But, as several of the jurists involved in the case have said, why not rewrite the order to be clear.

The briefs on both sides made due process arguments.

Jennifer Whitlock, an immigration attorney with St Louis law firm Whitlock & Gray told The Hill, “In the context of the executive order, due process rights “kick in” once a non-citizen has been deprived of their right to liberty.”

Those rights are given, she said, “once the government chooses to detain a non-citizen, and much of the chaos surrounding the order rollout came from individuals being detained for hours on end and even being forcibly returned to other countries by government airport officials.”

What is at the heart of most of the challenges is the separation of powers, the reliance we all know about that the framers created to have checks and balances on imperial authority. But the president sees it differently, and, in blistering attacks on the judiciary, he warned that the judge will be blamed if an attack occurs while the ban is halted.

Matthew C. Waxman, a professor at Columbia Law School, who served in senior positions in the National Security Council, Department of State and Defense Department under George W. Bush — and clerked for Supreme Court Justice David Souter — has a broad perspective of what the president can and cannot do.

“It’s true that courts are often a check on unconstitutional actions, but when cases involve national security or foreign affairs, they usually give great weight or deference to executive branch judgments,” Waxman told The Hill.

But, that said, Waxman argues, these are different times, because of the way that the executive order challenges the law and the courts: “It would not surprise me at all if courts give less deference to the Trump administration than they typically would on some national security matters.”

The president must recognize that he is not the first Commander-in-Chief to have restraints put on him by the judiciary. However, when the court cases are resolved — and there are dozens, including some dealing with compliance since the order went into effect — a healthy acceptance of judicial restraint should ensue; deference to the courts is very American.

When I visited Guantanamo Naval Bay base for a second time, after the detention center was established in the wake of 9/11, the American public had reacted with horror at the marching of untried men in orange jump suits and blacked out eye goggles, leg irons and ear muffs.The legal limbo of the detainees — some approved for release long ago — only got worse over time.

I asked the officer in charge of my trip why the Bush Administration had wanted such a display of lawlessness.

“We all thought that was what the American public wanted,” he said, “someone to pay for 9/11. We were wrong.”

Americans want to be safe and to secure the borders. The challenges to the executive order, win or lose, are an appropriate way to test them against the constitutional rights that Americans fight so hard for.

Pamela Falk, former staff director of a House of Representatives Subcommittee, is CBS News TV & Radio Foreign Affairs Analyst & U.N. Resident Correspondent and holds a J.D. from Columbia School of Law.  She can be reached at @PamelaFalk

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