Trump’s travel ban is controversial – but what is it, how did it happen and why is it being stopped?

It can be said that Donald Trump has not been having an easy Presidency so far. Often when political leaders assume office, they can be expected to have a so-called ‘honeymoon’ period during which minor indiscretions or trip-ups of the leader are overlooked or lack of experience taken into account. For President Trump, this honeymoon appeared to last about 12 hours. The day after a rather underwhelming inauguration (or the greatest in history depending on your sources) President Trump began the process of enacting a number of his key policies: notably the termination of the TTIP trade deal, the repeal of the Affordable Care Act and, perhaps most controversial of an already plethora of controversial actions, the Protecting the Nation From Foreign Terrorist Entry Into the United States executive order – otherwise known as the Muslim Travel Ban. Worldwide and domestically, the travel ban has been reviled, protested and in some arenas welcomed as long overdue but how was this seemingly toxic policy enacted, what does it actually entail and why is it being held up?

To first understand the ban, we must examine the method through which it was enacted – executive orders. Executive orders are a complex and contrived part of the US Presidential powers. In short, executive orders are proclamations by a President or State Governor, in which directions are given to federal or state authorities according to the wishes of the order – ranging from anything from establishing federal research agencies to detaining over 120,000 Japanese-Americans – which have authority as if they were legislation, so long as they are not mandating illegal or unconstitutional activities. Interestingly, the US Constitution makes no mention of executive orders; instead they have been utilised, since 1789, under the authority of Article II of the Constitution which establishes the President as an executive power. As the executive of the United States federal Government, the President is responsible for the day-to-day running of the Government but also the enforcement of laws passed by the legislature – the US Congress. In order to fulfill this role, Presidents have utilised executive orders, in circumstances such as civil disasters, to give examples but often the power of such orders has been seen to be somewhat abused, allowing Presidents to bypass Congress to enact their own laws which stand until/if they are struck down by a federal court. This is currently why, as of 12/2/2017, the executive order is currently suspended but before examining why, let’s first fully understand what the executive order is actually directing.

An internment camp for Japanese nationals in the USA, set up through FDR’s executive order 9066 (Source: US National Archives)

The directions of the order can be boiled down to several key points:

  • Enacts a 90-day visa suspension for travellers of any type from the countries of Iran, Iraq, Libya, Somalia, Syria and Sudan (Interesting choices as no fatal acts of violence have been comitted by citizens of the seven nations)
  • Suspends the US Refugee Admissions Programme for 120 days
  • Limits 2017 intake for refugees to 50,000 and indefinitely bans Syrian refugees, although exceptions are to be made on case-by-case basis

Supposedly, according to the administration, these directions are not unconstitutional and merely direct agencies such as Homeland Security under existing immigration laws, but some states, already opposed to the President’s other policies, found the order somewhat unpalatable, to the point where Washington state, and later Minnesota, brought a class-action lawsuit against the Government, in the action Washington v. Trump filed in the Western District of Washington. The action cites various reasons as to the action being brought, from the potential damage that could be caused to the economy of Washington; to the alleged infringement by the order of a number of pieces of legislation including the First and Fifth Amendments. When the lawsuit came to be heard by federal judge, James Robart on 3rd February 2017, he enacted a temporary restraining order on the order, meaning that effectively the ban had been nullified. Something akin to hysteria followed within the Trump Government, including an infamous tweet by the Commander-in-Chief referring to Judge Robart as a “so-called judge” and the day after, on 4th February, the Government brought an emergency motion to the Court of Appeals, citing that under the  Immigration and Nationality Act of 1952 amongst other legislation, provided sufficient authority for the restraining order to be quashed. Later however, to the dismay of the President, on 9th February the Court of Appeals upheld the original ruling of Judge Robart for the mean time, in order to come to a ruling on the case on 16th February. From this the President tweeted again with the hyperbolic statement of “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”. Surely the irony of the fact that order had already been in Court twice was not lost on the President.

President Donald Trump failing to grasp the basic workings of the US legal system (Source: @realDonaldTrump)

So here we have it: the executive order of Donald Trump, which is seen by many to unfairly discriminatory against Muslims and refugees, is being ruled on next week, after which potentially it could be struck down, or as has been suggested by the President himself, merely replaced by a new order, which, from what we’ve seen, couldn’t possibly be controversial. Not at all.

I hope you’ve enjoyed this quick journey into US executive orders, legislation and the President! What do you think the Court should rule in this instance? Is the President overstepping the mark? Is the ban really discriminatory?