President Donald Trump’s 90-day travel ban calling for the “extreme vetting” of people from seven Muslim-majority countries has provoked intense reactions, rallies and protests in airports across the country and anger on both sides of the aisle.
But is this ban, which limits nationals from Iran, Sudan, Libya, Somalia, Syria, Iraq and Yemen from travelling to the United States, completely unconstitutional? Despite the controversy, many legal scholars suggest it is likely constitutional, given the executive’s broad discretion for immigration. Former presidents — Barack Obama, George W. Bush and Jimmy Carter — have all restricted travel, yet their orders have not been derailed by courts.
When Obama signed H.R.158, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, he restricted visa-free travel to the United States for citizens of 38 countries who had travelled to Libya, Somalia or Yemen within the five years prior. Interestingly, not only were there no legal challenges brought about in regards to Obama’s travel ban, but this decision was celebrated by the mainstream media.
Similarly, Bush signed the Enhanced Border Security and Visa Entry Reform Act of 2002 after the measure was unanimously passed by both houses of the U.S. Congress. This act restricted travel from Syria, Iran and Sudan, which were deemed “state sponsors of international terrorism.” Though this legislation was passed in the wake of 9/11, it is worth noting the 73 Democrats who voted to pass this law in 2002 still sit in office and are among the biggest critics of Trump’s travel ban.
Trump appears to be held to a higher standard because of a number of controversial statements he made during his campaign. Throughout his campaign, Trump took a strong stance in favor of extreme vetting regarding unlawful immigration. His rhetoric spanned from building a wall on the Mexican border to increasing vetting for Muslims from around the world.
Regardless of where one stands with regard to the travel ban, it is clear its implementation has been less than ideal. Due to the travel ban, airport officials across the country lacked adequate instruction or training as to how to execute it efficiently.
Most importantly, the executive order poses concerning questions about the separation of powers. Constitutional law recognizes that the judiciary has as much power as the other two branches, the executive and the legislature, afford it. The only recourse the judiciary has is contempt of court.
In practice, if Trump chooses not to abide by a Supreme Court decision to overturn his travel ban, then there is not much the courts can do. But if the Trump administration asks the full Supreme Court to review the lower court ruling right away, there is a good chance Supreme Court justice nominee Neil Gorsuch, who would likely side with Trump, will not be on the bench by the time of the hearing. This raises the possibility of a 4-4 tie in the Supreme Court, which would mean the lower court ruling stays in place.
The Trump presidency already seems to challenge the notion of separation of powers, with Trump belittling the author of the federal ruling overturning the ban as a “so-called judge.” If anything good emerges from the travel ban, it will be the interesting debate about the separation of powers and limits of the executive, a concept which forms the bedrock of the U.S. Constitution.
Martha Petrocheilos is a student at the Law Center. MILLENNIAL’S CORNER appears every other Tuesday.
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