Tracking Trump's Congress

The Battle Over Trump's Executive Orders Is Just Getting Started

Around the country, lawyers and state attorney generals are ready to challenge the president's entire agenda in court.
February 3, 2017, 9:13pm

Like many new presidents, Donald Trump's first days in office were marked by a flurry of executive actions. Some of these restricted travel and immigration to the US in sweeping ways, some of them were more vague directives for federal departments to do something in the future; a large number of them appear to have been sloppily worded. But by Tuesday, the White House had slowed its roll, delaying a planned action on cybersecurity accountability indefinitely. Rumored executive orders that would restart a CIA "black site" program and legalize some discrimination against LGBTQ people also have yet to surface.


But the decision to hold off on the cybersecurity order was reportedly less about picking which orders to act on and more about the administration's need to focus on the lawsuits his "travel ban" has stirred up.

That order, which temporarily bars refugees and citizens of seven Muslim-majority countries from entering the US, is the most infamous and contentious Trump action so far. Early lawsuits resulted in judges declaring that travelers who were en route to America when Trump signed the order should be released from detention. But a number of advocacy groups, including the Council on American-Islamic Relations (CAIR) and the American Civil Liberties Union (ACLU), are challenging the entire order, as are the attorneys general of Minnesota and Washington and several large tech companies, who have many foreign-born employees. Even more legal actions are likely to emerge in the coming days, both on this order and others as they move toward implementation.

If you've been having trouble keeping up with all of the cases, you're not alone.

"I have done a chart trying to catalogue [them] as best I can," said Melissa Keaney, a staff attorney at the National Immigration Law Center, which is involved in the legal pushback to the order. "There continues to be minute-to-minute changes to the list. And I think some cases, especially individual habeas actions, are not all accounted for, because they're being filed on such emergency bases that a lot of folks aren't even able to share out the fact that it's happening."


"Altogether, we have a lot of very significant cases pending," Keaney added. "And I think we will be seeing more in the next few days."

Each lawsuit relies on some mix of the following arguments: The order implicitly singles out Muslims for restrictions, violating the First Amendment. It violates the due process guaranteed under American law as per the Fifth and 14th Amendments. It violates the 1965 Immigration and Nationality Act, which prohibits discrimination based on nationality or place of birth or residence when issuing visas. It violates the 1946 Administrative Powers Act against arbitrary or capricious actions or the abuse of executive discretion, especially when unsupported by substantial evidence of the need for action. Finally, some attorneys general argue, it harms the interests of the citizens of specific states.

Many of the anti-ban arguments are very broad, which Keaney told me was necessary due to the order's vague wording and inconsistent implementation—green-card holders were stopped from returning to the country, then they weren't; either 100,000 or 60,000 visas were revoked—making it hard to litigate specific implementations.

Skeptics of the suits have noted that foreign nationals, and especially non-permanent residents, often have fewer rights than citizens, that an older immigration law still allows the president to restrict entry (as opposed to visas) as he sees fit, and that the order does not specifically target religion. (The counter to that last point is that Trump and his advisors have spoken publicly many times about a "Muslim ban.") However, several federal judges have shown sympathy to plaintiffs' arguments when they halted people affected by it from being removed from the US. One Iranian man who was coerced into signing a document revoking his visa was returned to America by court order on Thursday, signaling hope for some with visas who were turned back and are now stranded abroad.


But adding to the confusion, some officials, particularly at Virginia's Washington Dulles Airport, are refusing to comply with court orders. "We have been spending the last few days just gathering evidence of all those various violations in order to obtain additional remedies," Keaney told me. But "it's a very dangerous statement that thus far the administration does not seem to feel compelled to respect [all] of the judiciary's rulings."

So far, these court-ordered reprieves only help those who were already physically on their way to the US when the ban was implemented. Citizens of the seven banned countries who have valid visas but are overseas are still barred from entry. And there has been no legal relief for refugees who find themselves suddenly unable to come to America.

The Minnesota-Washington case will have its first hearing on Friday, which could conceivably result in a pause on the entire order in the near future—and, further down the line, possibly lead to a wide nullification of elements of it.

It's relatively rare for courts to overturn provisions of an executive order, says Keaney, especially when national security issues are at play. But Paul Nolette, an expert on attorneys general, notes that courts have been open to lawsuits from states that target the federal government, some of which hampered Barack Obama's immigration-related executive orders.

Trump's other executive actions haven't attracted nearly as many lawsuits, possibly because they have had little immediate impact. San Francisco is suing the federal government over Trump's threat to pull federal funding from "sanctuary cities" that don't comply with immigration authorities, but some critics say that's mere a political stunt.

Keaney told me that many of Trump's actions were unclear enough that most organizations won't know what sort of cases to pursue until his administration does something concrete. "But I certainly think we're going to be seeing a lot of legal action," she added.

Nolette noted that attorneys general have made it clear they're ready to pounce on further actions and will likely have broad strategies ready to go. Key targets for future litigation might center around sanctuary cities, plans for the construction of the border wall, attempts to implement the one-in-two-out regulation restriction, and a bid to guarantee American pipelines are made with American steel. Nolette thinks attorneys general will be especially vigilant on environmental and healthcare issues.

This storm of litigation will continue, in bursts, for some time—and may actually lead to substantial limitations on Trump's boldest designs. The big question, though, is whether this is part of the Trump administration's design or just the byproduct of an inexperienced White House trying to do everything at once. Even before he became president, Trump wasn't afraid of risking suit by, for instance, not paying his contractors what his company had promised. He and his team could be using executive actions and litigation against them like a form of negotiation—ask for everything you want, and see what the courts will give you. Or not. In any case, we shouldn't expect the Trump administration to stop testing just how far the law can bend to its whims.

Follow Mark Hay on Twitter.