On June 26, 2017 the Supreme Court of the United States agreed to hear arguments over President Trump’s executive orders barring the entrance of individuals from 6-7 majority muslim nations (the second executive order removed Iraq from the list of included nations) and the indefinite suspension of the U.S. refugee program. Until the official arguments in October, the high court has temporarily reinstated these sections of the travel ban. This has the potential to be the most important case on executive authority that has been seen in the 21st century. It could severely limit the president’s ability to write executive orders on the basis of national security without sufficient evidence of necessity. It would also more concretely define the president’s ability to influence immigration law and possibly severely reduce it. In President Trump’s case, this would be a major blow to his campaign promises.

Although it is currently unclear how stringently the reinstated portions of the travel ban will be enforced, the Supreme court provided a safety net for immigrants who had “legitimate ties” to the United States. This is a continuation of current U.S. immigration policy that shows preference to immigrants who have family that are United States citizens. The deferral of the court to current immigration policy indicates that high court may be keeping congress in mind during the proceedings and that it is very possible the court will designate the responsibility of immigration policy to only congress. This  would severely limit the capacity of the president to affect immigration policy and would particularly hurt the President’s ability to make good on much of his platform, including banning muslims from entering the United States, building a wall between the United States and Mexico, and deporting all illegal immigrants residing in the U.S.

The original executive order prohibiting the entry of persons from 7 majority muslim nations (Iran, Iraq, Syria, Somalia, Sudan, Libya, and Yemen) and indefinitely suspending the United States refugee program was signed in January during the first days of the Trump administration. The order was intended to protect the national security of the nation, but many Americans interpreted the order as a thinly veiled attempt by the Trump administration to secure one of his key campaign pledges: a muslim ban. The order led to massive protests in several major airports almost immediately following its signature and the rapid detainment of several families trying to enter the United States from these countries. Several lawyers set up “offices” on the floors of several major airports trying to put together files to block the travel ban and get the families released. The first ban was blocked by a judge in New York and the block was sustained by a federal appellate court in February. The ban was blocked on the constitutional grounds that the ban denied legal visa holders due process and had been intended as a discriminatory law against muslims.

The Trump administration’s response to these proceedings was to release a new, edited version of the travel ban that allowed visa holders into the country and removed Iran from the list of included countries. The order was signed March 6, 2017 and was blocked by a judge in Hawaii around 24 hours later. This decision was upheld by a federal appellate court on the grounds that the order could not sufficiently prove its necessity to national security.

Those who oppose the ban overwhelmly point to its intent to be religiously discriminatory to people of the Islamic faith and use the ample campaign rhetoric of President Trump to make their point. Bolstering their argument, opponents have called the order unconstitutional on several other grounds such as the order denies immigrants due process. Those who support the ban argue that those affected by the order are not guaranteed the rights under the constitution of the United States. These two arguments miss the biggest question: what is the scope of executive power? The constitution clearly states in Art. II Sec. 8 that congress shall have the power  “To establish a uniform rule of naturalization”, which means that the congress shall decide who is and is not a citizen and therefore protected by constitutional rights. The questions of citizenship and immigration are inseparably connected. Therefore, one could interpret that the constitution gives the responsibility of immigration policy to congress and according to congress, immigrants cannot be discriminated against based on their country of origin (See Immigration and Nationality Act 1965).  

However, the majority of foreign policy responsibilities are given to the executive branch and the President does have autonomy over matters of national security. In this case the President would have supremacy over the congress. However, it is important to note that even these powers are limited. For example, the President can send troops into battle but cannot declare war — only congress can do that. Also, it is not unusual for certain presidential powers to become limited by other branches of government when the need presents itself. In 1973, the War Powers Resolution was signed by congress stating that a President cannot deploy troops for more than six months without a formal declaration of war from congress. This law was written with the intention of limiting the president’s ability to escalate war efforts following the Vietnam War. The law also rescinded the expansion of powers given to the President by the Gulf of Tonkin resolution.

In the end, the Supreme Court will decide who has the power to impose overarching immigration policy and how little or how much evidence the President needs to present in order to designate something a matter of national security. But it is important to understand how this decision will affect not only this presidency, but our understanding of the power of the executive and legislative branches. Finally, it is important to remember that the President’s of the United States’ primary duty is to uphold the laws of the United States and this travel ban explicitly violates the Immigration and Nationality Act of 1965’s explicit prohibition of discrimination of immigrants based on national origin. The nation should think critically on whether or not it wants a President to have the power to so brazenly defy the laws he swore to enforce.

For more information on the travel ban:

Published by Manon Steel

Student at Michigan State University Majors: Social Relations and Policy, History Minors: Spanish, Latin American & Caribbean