Donald Trump’s Executive Order, Known As ‘Muslim Ban,’ Will Be Challenged In Court
Donald Trump has been working at what many consider to be a break-neck speed in the past seven days that he has been in office. But CBC News reports that he’s not working any faster than other presidents, noting that President Obama signed five executive orders and 10 presidential memos in his first week. But his most recent order, an order that immediately halted the refugee program to the United States, the Trump executive order known as the “Muslim ban” by the public, is the one that may be the first to be challenged before the courts, reports BBC News.
It is not the speed of Trump’s executive orders that are bothering many Americans, as much as it is the controversial nature of some of them. Trump’s executive orders include repealing Obamacare, and also bringing torture back to CIA directives. But, an executive order that doesn’t have the backing of Congress and the president’s cabinet, doesn’t have strong legal legs and “won’t actually happen” reports the Washington Post.
Trump has already begun to experience disagreement from his cabinet on some of his executive orders, specifically CIA Director Mike Pompeo, who disagrees with Trump’s executive order on torture, a change Pompeo says he wasn’t even consulted on. Defense Secretary James Mattis also opposes the re-opening of black site prisons.
Some of Trump’s executive orders, like the one on black sites to be used by the CIA for torture, will not have human reaching consequences, yet. But some already are. Trump’s most recent executive order, colloquially known as the “Muslim ban,” is already having human consequences in the United States.
This specific order could also lead to economic consequences for America. Additionally, many deem the order unconstitutional. Both Vice President Mike Pence and the Speaker of the House Paul Ryan have said in the past that a ban of entry into the United States due to faith is “offensive” and unconstitutional.
Calls to ban Muslims from entering the U.S. are offensive and unconstitutional.
— Governor Mike Pence (@GovPenceIN) December 8, 2015
In fact, Speaker Ryan strongly condemned Trump in the past, noting the Muslims serving in American forces, and even in the House of Representatives, that would be offended by any ban of Muslims to the United States.
But Speaker Ryan now reportedly supports Trump’s executive order known as a “Muslim ban.” BBC News reports that the specifics of the executive order bans nationals from six countries from entry into the United States over the next 90 days. Additionally, no refugees will be admitted to America for the next 120 days.
Donald Trump used the September 11 attacks as the legal basis in the wording of his executive order, but he cited countries in the executive order that were not involved in the attacks on America. The six countries named in the order are Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen, all countries with a Muslim population that exceeds 80 percent.
But, Saudi Arabia was not included in the refugee freeze, reports The Independent. The Independent also reports that Trump allegedly has business holdings in Saudi Arabia, though Trump’s lawyers said otherwise in December, 2016. The Independent also reports that Trump has long sought to protect Saudi Arabia, saying Saudis were going to “have to protect us economically” referring to the oil trade.
Further, Saudi Arabia is a country that is known to have had a role in the September 11 attacks against America, according to a declassified 2002 congressional report on 9/11, that linked an al Qaeda operative with a key member of the Saudi royal family, reports CNN. The member was the former Saudi Ambassador to the United States, Prince Bandar bin Sultan.
Also, of the 19 hijackers involved in September 11 attacks, 15 of them came from Saudi Arabia.
Trump’s executive order considered to be a Muslim ban does provide priority for future refugee applications if they are persecuted for their religion, but only if the individual is a member of a “minority religion” in their home land. The countries listed on the executive order all have a majority Muslim population, meaning applicants from those countries seeking asylum from religious persecution could not be Muslim. Trump has also capped the amount of refugees to be accepted by America at 50,000, a number that is half of what President Obama ordered.
Trump also wants a stronger vetting process on refugees, a promise he campaigned on. BBC News reports that includes a process with questions that will “evaluate the applicant’s likelihood of becoming a positively contributing member of society.”
It’s an order that is already experiencing human consequences. BBC News reports that several Iraqi passengers and a Yemini national were unable to board a flight from Egypt to New York today, even though they held valid visas for doing so. Green card holders are also having a problem getting into America now, even though they have been deemed permanent residents of the country.
Trump’s executive order that is effectively placing a ban on Muslims entering the United States alleges it is an attempt to halt “Islamic terrorism.” But human rights groups say there is no evidence linking Syrian refugees to Islamic terrorism.
Also today, it has been confirmed that Iranian foreign filmmaker Asghar Farhadi will be unable to attend the Oscar’s this year as a result of this ban. He has been nominated for best foreign language film for The Salesman.
Confirmed: Iran's Asghar Farhadi won't be let into the US to attend Oscar's. He's nominated for best foreign language film…#MuslimBan
— Trita Parsi (@tparsi) January 28, 2017
The Muslim ban executive order is also creating an economic impact, which could hurt America’s most profitable sector, technology, reports BBC News. Google has already had to recall some of their staff currently working overseas, and Microsoft has “warned shareholders” that this freeze could have a “material impact on business.”
The technology sector depends on talent overseas working in America on H1-B visas, and risk losing this talent from the Middle East if this order stays in place. But an executive order is only an executive order, and if deemed unconstitutional, it won’t last long, reports the Washington Post. BBC News reports that the response from the American Civil Liberties Union (ACLU) to the executive order called a “Muslim ban” was, “We’ll see you in court, Mr. Trump.”
We'll see you in court, Mr. Trump: @ACLU files suit challenging Executive Order on refugees https://t.co/IqsqSl4R5y
— David Cole (@DavidColeACLU) January 28, 2017
The ACLU is not the only group reacting with legal claws against the refugee freeze. The Council on American Islamic Relations (CAIR) will also file a lawsuit. The CAIR is challenging the constitutionality of the executive order, and they allege that the purpose and “underlying motive” of Trump’s executive order was to ban Muslims.
CAIR National Litigation Director Lena Masri used the word “bigotry” when outlining the CAIR strategy against this order.
“There is no evidence that refugees – the most thoroughly vetted of all people entering our nation – are a threat to national security. This is an order that is based on bigotry, not reality.”
Co-counsel on the lawsuit, Attorney Gadeir Abbas reiterated their stance on the issue.
“The courts must do what President Trump will not – ensure that our government refrains from segregating people based on their faith.”
The executive order was signed on the 72nd anniversary of the holocaust. Trump released a statement about the Holocaust Memorial Day, but it was a statement that did not include any remarks against anti-Semitism. He did however say, “Together we will make love and tolerance prevalent throughout the world.”
A petition signed by 11 Nobel laureates has also begun protesting Trump’s executive order for a Muslim ban citing it as unethical, discriminatory, and intolerant.
Although executive orders are often treated as law, they aren’t actually law, and don’t have a legal leg to stand on if there is opposition from Congress and the cabinet. CBC News reports it is easier to turn over an executive order than it is to turn over an actual law, and this is why presidents are “better off” working for legislation for their policies and legacies, as opposed to just signing an order on their own individual will.
A constitutional law professor at George Washington University in D.C. told CBC News the following.
“The danger of muscling in reforms via executive orders is that presidents risk creating a legacy that only stands on clay feet.”
Executive orders can be challenged in courts, Congress, or by the succeeding president. The Washington Post notes that many of Trump’s “sweeping actions” this week probably won’t even happen, as they are either opposed by his own people, or, “full of legal holes.”
The Washington Post reports that Trump hasn’t even had many of his executive orders researched and written properly, and describes an “ad hoc” method of his creation of executive orders. They’ve either been written by aides with little-to-no experience of the actual law, and have reportedly even caught many Republicans in Congress “off guard.”
The Washington Post notes that some of his orders were reportedly drafted at the last minute, and after “off the cuff” conversations Trump had with a friend or business executive. These tactics could further undermine Trump’s executive orders, particularly for the ones that are challenged in court, as Trump will have little legal standing to defend an order that is not legally valid on its face.
A professor at University of Maryland’s law school says that Trump doesn’t understand simple civics.
“Trump needs to go back to civics class, because he can direct his employees to do various things, but he cannot repeal a bunch of laws through his executive orders because he needs congressional consent – and the executive orders themselves say that. He can’t just sit there and show pieces of paper with his overly emphatic signature and say ‘I have changed the world’ because that’s not how we do it.”
There is precedent to overturn executive orders while a president is still in office. The Intercept reports that President Truman and President Bush had serious executive orders overturned. Bush’s Executive Order 13224 declaring 27 groups as “specifically designated global terrorists” was struck down, in part, because it was “unconstitutionally vague on its face” and because it included “no limits on the president’s power to make such a determination.”
Watch what Speaker Ryan said, when he strongly condemned Trump’s plans to ban Muslims from entry into the United States, as recently as July, 2016.
President Obama’s Executive Order 13492 to close Guantanamo Bay was also overturned by Congress. Whether Trump’s executive order called the “Muslim ban” will be overturned remains to be seen, but human rights groups are working hard to protest it in the courts.
[Featured Image by Alan Diaz/AP Images]
