US Federal Courts are the right place to decide the legality of Donald Trump’s ‘travel ban’

The legal moves and counter-moves in respect of Donald Trump’s ‘travel ban’ Executive Order – which includes the stay imposed on its enforcement by a Federal Judge on Friday – should be welcomed as in the present fraught atmosphere they are probably the only way of resolving the question of its legality.

I have previously discussed why the Executive Order appears to me to break no new ground.  I doubt that it is discriminatory in the way some people say, and I doubt that its intention was discriminatory.  The Executive Order has been administered in the most chaotic way, and this has caused real hardship in many cases.  However that is unfortunately true of most immigration and border law in general.

On the subject of whether the Executive Order is discriminatory, given that its declared purpose is to exclude from the US Jihadi terrorists who are exclusively Sunni Muslims, it seems to me that it would be illogical to exclude from the US the non-Sunni Muslims the Jihadi terrorists are persecuting.  In other words the discrimination looks to me to be on the part of the Jihadis it is targeting rather than in the Executive Order itself.

It is open to opponents of the ‘travel ban’ Executive Order to argue otherwise, though I would say that those who do so by criticising it for being discriminatory in my opinion need to be careful with this argument, since it could be argued that one way to ‘cure’ it would be to extend the ‘travel ban’ to allow for no exceptions from the seven targeted countries, even if that means excluding from the US people who the Jihadi terrorists are persecuting because of their religious beliefs.

Having said this, as I have said previously

I am not familiar with US asylum and entry law so I do not know whether the Executive Order in any way breaches that law. However, I have to say on the face of it that I think that is unlikely.

Many people in the US and elsewhere – citing the US constitution – think otherwise, as is their right.  If so then the correct thing for them to do is to challenge the Executive Order in the US federal courts, as they are now doing, with the Department of Justice – as it also should be doing (see below) – defending the Executive Order by arguing the President’s case.

That is precisely what is now happening, and it is welcome, as it should finally and conclusively resolve the question of the Executive Order’s legality.  In saying this I would say that if – as I expect – the federal courts eventually rule that the Executive Order is legal, then it will still be the right of its opponents to argue that it is wrong, and to campaign against it politically.  However they should take note of the fact that a plurality of Americans apparently backs the President on this question.

There are  a number of myths concerning the ongoing legal battle which I think it would be helpful to dispel.

Firstly, in an article published by the Guardian on Wednesday 1st February 2017 (before the federal judge’s order made on Friday 3rd February 2017) the British commentator Jonathan Freedland – echoing numerous claims I have seen being made by opponents of the Executive Order in the US – said that the Trump administration was behaving lawlessly by ignoring decisions of the courts.

Recall that once the ban came into force, and would-be arrivals started being detained at or deported from US airports, several federal judges rapidly issued court orders demanding a “stay” or halt to the proceedings. In the normal run of things, the instant such a legal ruling was issued, the policy would come to a stop. Because the law is paramount, the court’s word should have been decisive.

But that’s not how it played out last weekend. Even after the judges had spoken, Customs and Border Protection (CBP) staff continued to enforce Trump’s executive order. CBP officers kept lawyers from speaking to detainees, even after a court judgement had said they could. When elected congressmen and women called and asked for information, the CBP put the phone down on them. And, even after the court rulings, the White House insisted that the executive order still stood.

The significance of this is enormous. It means that the executive – in the form of both the White House and the Customs and Border Protection agency – was refusing to bow to the judiciary. That position was perhaps articulated best by the CBP officer who, when asked by two members of Congress who exactly he was reporting to, answered, “Donald J Trump”.

This is precisely the sort of paranoid and overblown argument now typically made about Donald Trump which makes one doubt the bona fides – or the grasp of reality – of his opponents.  If Freedland really believes all this, then all I can say is that it betrays a complete misunderstanding of the legal process.

All the court decisions made prior to Friday did not touch on the legality of the Executive Order.  They ruled on the legality of its enforcement in individual cases, which is an entirely different thing.  By contrast the federal judge’s order on Friday did touch on the legality of the Executive Order, and it is being observed.

The ‘travel ban’ Executive Order may or not not turn out to be legal.  That is a question for the federal courts to decide.  However there are no grounds for saying that the Trump administration is behaving lawlessly, or that it is ignoring or defying the courts, though it is possible that some lower ranking officials, left uncertain about what they should be doing because of the chaos that followed the making of the Order, may have acted in particular cases contrary to the specific orders of the courts.  However it seems that a judge has refused to rule that these officials are in contempt of court, saying there is insufficient evidence to decide this question.  I will here express my opinion, which is that I doubt they are.

Secondly, there continues to be some discussion of the conduct of Sally Yates, with some defending her on the grounds that as acting Attorney General she owed a duty to the constitution – to uphold which she has sworn on oath – and that this somehow overrode her duty to her client, which as the US’s Attorney General is the US government and its chief executive officer, the President.

All lawyers however have an overriding duty to the law.  There are no exception.   No-one moreover is saying that Sally Yates should have defended the Executive Order if she thought it was illegal and unconstitutional.  That would be absurd.  If Sally Yates thought the Executive Order was illegal and unconstitutional then certainly she should not have defended it.  Her duty in that case was to tell the President that his Executive Order was illegal and unconstitutional, and if he rejected her advice – which is his right – and ordered her to defend the Order despite her advice – to resign.

I would add that the same would be true if Sally Yates was unsure about whether the Executive Order was illegal and unconstitutional, but thought that on balance it probably was, and that the government’s case was weak.  She should have advised the President of this, and informed him that in her opinion it was against the national interest for the US government to defend a case it would probably lose, and if the President – as is his right – again rejected her advice and ordered her to defend the Executive Order,then she also should have resigned.

In the event Sally Yates’s letter shows that she decided against defending the Executive Order not because she had decided it was illegal and unconstitutional, and not actually because she thought the government would lose the case, but because she didn’t agree with it.  The point is fully discussed by Jack Goldsmith, who unlike me is a Harvard law professor and former Assistant Attorney General, Office of Legal Counsel, from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

In the event, with Sally Yates gone, the Department of Justice is now doing its job, advising the President and the US government, and making its case in the courts.  That ensures that the question of the legality or otherwise of the Executive Order will be properly and fully argued before the courts, as it needs to be if this contentious issue is to be resolved properly in a way that commands general respect.

Though legal processes can take a long time in the US and elsewhere, this case will I think be an exception, and I suspect it will be resolved one way or another within the next few weeks.