Presidential hopeful Donald Trump’s proposal to place a temporary ban on Muslims entering the United States has created quite a stir in the Presidential race and American politics. His proposal was immediately met with bipartisan criticism1.

Supporters of Trump’s plan view this extremity as a necessary action to ensure our national security and protect our borders from another terrorist attack on U.S. soil.

Many others, however, see this latest political stunt merely as rhetoric to inflame the passion and prejudice of America’s ultra-conservatives to his favor; rhetoric that no President would have constitutional authority to implement because it would violate the separation of powers clause of our federal Constitution, not to mention abridging several rights under the Amendments to our Constitution.

Trump appears to be taking the position that, as part of the President’s war powers, he could implement his proposal to ban Muslims while the country is still at war with terrorism. However, because Congress has plenary power of immigration, many say Trump’s proposal would need an act of Congress to avoid running afoul of the Constitution.

Historical View of the Executive Power

No governmental power is unchecked, including that of the President’s. A central tenet of the U.S. Constitution contemplated this notion of separation of powers. The founding fathers recognized the potential for grave governmental abuse if any branch of government yielded too much power. Thus, the founders incorporated a system of checks and balances to prevent the government from becoming a tyrant to the American people and our Democratic system.

The beauty and the problem both with the American Constitution is that it was written to be elastic, adaptable, and to arguably evolve. The founders gave us guidelines to follow, but Presidential power is something that has never been clearly defined.

The uncertainty of executive power was illustrated in the case Youngstown Sheet & Tube Co. v. Sawyer. There the Supreme Court considered whether President Truman had the implied power, as part of his express war powers, to seize privately-owned steel mills as part of the Korean War effort. The Court concluded that he did not.

The famous Jackson concurrence from the Youngtown case, although dicta, became the modern guideline for extent of the President’s implied war power, which is as follows:

  • When the President acts following Congressional authorization, the President’s authority is at its greatest;
  • When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers; in a situation where the President’s power is concurrent with Congressional power, like war power shared between the executive and legislature, the distribution is unclear. Action however, would have to be necessitated by some extraordinary event.
  • When the President acts against expressed or implied will of Congress, the authority of the President is at its lowest2.

In today’s national security debate, Trump’s proposal would fall in that middle grey area in the absent Congressional action. However, if Congress were to pass a comprehensive immigration reform act that specifically contemplates national security threats and Presidential authority, then it would be much more difficult for the President to implement such a proposal. In a sense, these outrageous claims are merely an invitation for Congress to act.

Past Unilateral Executive Action

In proclaiming that, as President, Trump would have the authority to put his Muslim ban proposal into action, he points to past Presidential actions, which have been frequently upheld by our courts.

WWII Internment Camps

In 1942, President Roosevelt issued an executive order authorizing the military to detain persons of Japanese, Italian, and German descent, some of which American citizens, in internment camps of potentially infinite duration. Not our finest hour.

The Supreme Court later upheld the constitutionality of Japanese internment camps in Korematsu v. United States on the basis of national security. The court deferred to the military’s assessment that the action was necessary to protect Americans from espionage.

The Supreme Court has yet to have occasion to overrule and declare Korematsu unconstitutional. As late as February of last year, Justice Scalia during a discussion with law students at University of Hawaii said that “…the Korematsu decision upholding the internment of Japanese Americans was wrong, but it could happen again in war time.”3 Congress issued a declaration of war against terror in 2001; the United States is still at war with an ideology and national security concerns are mounting.

As Scalia inferred, this case could be legal precedent to satisfy Trump’s proposal. Though Korematsu is different in that it did not involve deportation, Trump’s proposal is probably a less severe remedy than Roosevelt’s Executive Order 9066.

“Operation Wetback”

In 1954, the Eisenhower Administration implemented a ‘mass deportation policy’ in cooperation with the Mexican government to remove around 1 million Mexican nationals back to Mexico. In carrying out this controversial policy, the United States is said to have committed gross human rights violations that resulted in many deaths. Not our finest hour. Moreover, this was not the first time the United States has implemented mass deportation plans4.

The President is expressly empowered to enforce federal law including those regulating immigration and specifically illegal aliens. Even if an executive order enforcing immigration law would violate international human rights treaties, there would be little consequence because the United States would be acting within the bounds of its own Constitution, as it trumps all international law under the Supremacy clause.

So arguably, the President could issue a similar order so long as it involved illegal aliens violating federal immigration laws. However, past mass deportation policies would not pave the way for future Presidents to ban Muslims under its enforcement power from entering the United States as it would likely violate the Supremacy clause (not to mention First Amendment implications).

Similarly, Operation Wetback is not precedent to strip American and Muslim citizens of their Constitutional rights. A ban preventing certain foreign nationals from entering is different than deporting illegal aliens. It is also different from imprisoning American citizens as the basis of suspected treason. However, banning Muslims from entering the United States pursuant to the President’s war power and in the name of national security sounds scarily similar.

Unilateral Presidential Action in the Obama Administration

Many argue that the Obama Administration has taken action outside its executive authority and paved the way for future Presidents to unilaterally create law—a function constitutionally reserved for the legislature.

There is a fine line between legislating law and issuing a Presidential order that enforces existing law. The Obama Administration has been heavily criticized for acting like a Super-legislature. One article points out examples of Obama’s unilateral actions:

“[Obama] decided to stop enforcing existing deportation laws as they apply to those under 30; has issued “recess” appointments when the Senate wasn’t in recess; has violated laws ranging from the legal deadline for releasing his own budget to the legal requirement contained in his own “stimulus” that his administration release regular reports on its results; who implemented an illegitimate demonstration project to delay Obamacare’s highly unpopular Medicare Advantage cuts until after the election
; who has frequently chosen not to enforce federal marijuana laws; whose administration, seeking to avoid further charges of crony capitalism, reportedly told UnitedHealth Group to violate federal law by not reporting a politically toxic purchase to the Securities and Exchange Commission until after the election.”5

One thing is clear. There would be little need for over-active Presidential action if Congress would do its job and change law. Immigration reform is within its purview and is a means to effectively limit the power of the President—also Congress’s job. Obama and potentially Trump can only enforce that which is law, created by a Congress which is notoriously slow to act, bringing to the fore, once again, the power of the President.

Aside from the power struggle between the Legislative and Executive branches, one issue remains: What is the extent of the President’s implied war (or other such) powers and how far-reaching is nationality as a means to circumvent existing constitutional protections? Although Trump is outlandish and, his propositions mercurial and arguably dangerous, the propositions do demonstrate our glaring Constitutional vulnerabilities and as President Obama has similarly exercised his Presidential authority regarding gun control just this week, we predict this issue to be the subject of extensive litigation in the very near future.

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1https://www.washingtonpost.com/opinions/how-obamas-power-plays-set-the-stage-for-trump/2015/12/10/81ace982-9e85-11e5-8728-1af6af208198_story.html

2 Youngstown Sheet & Tube co. et al. v. Sawyer, 343 U.S. 579, _ (1952)

3https://en.wikipedia.org/wiki/Korematsu_v._United_States#cite_note-4

4http://www.npr.org/sections/thetwo-way/2015/11/11/455613993/it-came-up-in-the-debate-here-are-3-things-to-know-about-operation-wetback

5http://www.weeklystandard.com/the-legislator-in-chief/article/696233

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