Presidential Executive Orders – Can He Do That?

This blog was originally posted on Jan. 30, 2017.

Blog author, Constitutional Law expert and Cooley Professor Brendan Beery clarifies a complicated concept in today’s political arena. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at Cooley Law School, and is a frequent legal expert in the media.

An Executive Power Primer for the Trump Era

Executive orders are coming fast and furious: people from seven predominantly Muslim nations barred from entering the United States; “sanctuary cities” targeted; federal employees muzzled; deportations accelerated; pipelines approved; reproductive counseling overseas banned. And a single question echoes through the land: can a president do this?

There are dozens of legal considerations that go into answering that question, but let’s start with the fundamentals. The leading Supreme Court case about presidential authority is Youngstown Sheet & Tube Co. v. Sawyer from 1952. That case arose from President Harry Truman’s attempted seizure of privately owned domestic steel mills to stop the mills from closing down over a labor dispute during the Korean War. Justice Robert Jackson laid out a three-tiered test for determining the constitutionality of an executive order.

Article II of the Constitution makes the president the chief executive of the United States, so the president’s job is to execute the laws. Those laws, in turn, are made by Congress, so the president’s power is tied to Congress. As Jackson put it, when the president is acting in a way that has been explicitly or implicitly authorized by Congress, the president is operating in “zone one” and his power is at its maximum. Conversely, congressional disapproval (i.e. a statute, resolution, or other evidence that Congress does not want the president doing whatever it is that he’s doing) puts the president in “zone three,” where his power is at its minimum.

That leaves what Jackson famously called a “zone of twilight,” or “zone two.” The president acts in zone two when Congress is silent as to whatever matter the president is addressing. When that happens, courts look to history to determine whether such matters have been addressed by the president alone in the past with little or no controversy or push back.

Critically, courts also look to whether the president is setting domestic policy or addressing external concerns. Remember: the president is supposed to be executing the laws, not making law. And setting domestic policy is the quintessence of the lawmaking function. When it comes to foreign or external affairs, on the other hand, courts have long said that the president is the sole face and voice of the United States. The question whether the president is setting domestic or external policy is especially important when the president is operating in zone two. (Under this approach, Truman’s executive order was deemed unconstitutional because Congress had not authorized it and it involved the seizure of domestic industrial facilities.)

As with so many constitutional questions, resolving whether a president’s executive order is an abuse of the president’s constitutional authority is not as easy as it might seem.  Take, for example, Trump’s recent executive order barring the entry into the United States of people from seven predominantly Muslim nations. The order clearly and expressly discriminates against visa applicants on the basis of their nationality (country of origin). Is Trump operating in zone one, two, or three? As you’ll see, Congress is not silent, so zone two is out.

Congress enacted a law in 1952 that provides as follows:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. (8 USC 1182.)

Trump’s lawyers will argue that this law puts him in zone one, and they have a point. This law seems to give the president virtually unfettered discretion to exclude whatever class of non-citizens he wants to from the United States.

But in 1965, Congress passed another law designed to address the widespread practice up until then of excluding people from entering the United States on the basis of irrational prejudices against certain ethnic groups – especially Asians. President Lyndon Johnson signed the law, saying it represented the end of shamefully discriminatory decision-making as to immigration. That law provides as follows:

Except as specifically provided in [other sections of the U.S. Code irrelevant here], no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence. (8 USC 1151.)

This law seems to put Trump squarely in zone three; Congress has expressly prohibited that which he has clearly attempted to do (discriminate on the basis of nationality).

See why we need lawyers and judges? One law puts Trump in zone one, and another puts him in zone three. (Since more specific laws typically trump less specific laws and new laws typically trump older laws, he’s more likely in zone three, but not every judge would agree). To complicate matters, immigration arguably is a matter of external and foreign affairs, which usually means the president gets more leeway, so even if Trump is in zone three, he still has one leg to stand on.

And we haven’t even touched on the issues whether the order violates the Establishment Clause by indulging preferences for Christian minorities over Muslim majorities in the affected countries; the Equal Protection Clause by targeting a suspect classification (religious minorities); or the Due Process Clause by diminishing certain liberty interests (especially as to non-citizens who already have visas and “green cards”) without any notice or hearing.

Incidentally, this is why yet another constitutional principle comes into play: the “political question doctrine,” which I discussed in an earlier post about the Emoluments Clause. A federal court could look at all this mess and decide to punt, and it could do so by saying that the whole immigration issue is constitutionally committed to the two political branches: Congress and the president (so let them fight it out). If a court says that, then it will refuse even to entertain any claim as to the constitutionality of the immigration order.

At any rate, now you know the two questions to consider when someone asks, “Can a president do that?” First, has Congress authorized the president to do it? Second, which does it involve – domestic or foreign policy? Here’s a handy way to address the constitutionality of the president’s actions:

If Congress authorizes the president’s action and it relates to external affairs, the president is a constitutional Dirty Harry: he can do whatever he wants.

If Congress authorizes the president’s action and it relates to domestic affairs, the president is good to go.

If Congress is silent and the president’s action relates to foreign affairs, the president is probably good to go.

If Congress is silent and the president’s action relates to domestic affairs, the president is on shaky ground; a court will look to how such actions have been handled historically.

If Congress appears to stand in opposition to the president and the president’s action relates to foreign affairs, the president is on shaky ground and a court will likely look for other violations (like equal protection or due process), but a court could still defer to the president as to external affairs.

If Congress appears to stand in opposition to the president and the president’s action relates to domestic affairs, the president’s action is most likely unconstitutional.

Put on your judge hat and consider these questions again. Do the laws quoted above put Trump in zone one or zone three? And is Trump addressing domestic policy or foreign policy? What is your ruling?

All of this presumes that the order does not violate some other constitutional provision, like the Establishment Clause, the Equal Protection Clause, or the Due Process Clause. Congress may not authorize the president to do something unconstitutional any more than it may do something unconstitutional itself. As of this writing, at least one federal judge has partially halted Trump’s order banning travel from Muslim nations on the basis that it likely violates the equal-protection and due-process principles mentioned above.

There will be many more legal decisions in coming days, weeks, months, and years.