President Trump and administration ignoring the law

On Feb. 4, the day after a Washington federal court enjoined President Trump’s executive order banning refugees and citizens of seven Muslim countries from entering the United States, Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.”

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

— Donald J. Trump (@realDonaldTrump) February 4, 2017 

But why did it take so long?

Early last week, district courts in Massachusetts and California issued nationwide injunctions requiring the executive to admit some or all of the individuals banned by the executive order, and to instruct airlines that affected groups landing at the respective local airports (Logan and L.A.) would be admitted into the country.

In a stunning blow to the rule of law, the Trump administration ignored these decisions. Previously issued visas and travel documents were seized or canceled. And most of the affected groups — including one of our clients, a Sudanese man seeking to visit his family— could not enter the United States until Feb. 5.

{mosads}An accounting of the full course of events is needed to understand what happened.

As is now well known, on Jan. 27 President Trump signed an executive order banning entry of all refugees into the United States for 120 days, indefinitely banning refugees from Syria, and prohibiting the entry of all citizens of Yemen, Somalia, Libya, Syria, Iran, Iraq and Sudan for 90 days. As he and his advisers were undoubtedly aware, thousands of people holding visas to work, study or live with family in the United States were affected by the order, including some who were on flights to the United States at the time it was signed.

Those who landed in the United States after the order was issued were denied entry by U.S. Customs and Border Protection, and many were forced to return to their countries of origin. Among those initially barred were Iraqi interpreters who risked their lives translating for American troops, lawful permanent residents who were separated from their children and spouses, and long-time employees of tech firms.

Within 48 hours, Massachusetts District Court Judge Allison Burroughs and Magistrate Judge Judith Dein issued a nationwide injunction of the executive order’s key provisions, requiring the executive to admit “valid visa holders” from the seven Muslim countries and inform airlines of the change in policy. On Tuesday, Jan. 31, a district court judge in Los Angeles issued a similar decision.

Unbeknownst to most of the public at the time, the State Department had issued a separate secret memorandum on the same day as the executive order rescinding the visas of all citizens of the seven targeted countries.

So even though the Boston and L.A. orders required the government to admit “valid visa holders,” the Trump administration could claim that no one qualified for its protection. (Although the administration did reverse course and permit lawful permanent residents from these countries to come to the United States, it did this on a discretionary basis, without conceding it must follow the court order.)

This was a perversion of the rule of law. The State Department memorandum followed from the executive order itself; if one is enjoined by a court order, then so is the other.

Yet the government continued to act as if none of the individuals who had previously been given permission to enter the United States temporarily — such as students and temporary workers — could come in. (It’s as if the government secretly decided to change the name of Customs and Border Protection and then claim that any court order using the old name doesn’t apply.)

And while the Trump administration finally reversed course after the Washington ruling, the fact that this only happened five days after the other rulings were in place is a concerning harbinger of things to come.

Three key lessons emerge.

First, litigants, courts and the public need to be vigilant in ensuring compliance with the rule of law.

Second, courts need to be cognizant of all the potential loopholes in application. The Boston court, after all, only prohibited “valid visa holders” from being “detained or removed” upon arrival; according to the administration’s twisted logic, if it took away their visas so they couldn’t come to the United States, they wouldn’t be “detained or removed.”

The Washington court order, by contrast, prohibited the administration from “enforc[ing]” key aspects of the order, which was presumably interpreted to have broader effect.

Third, and we can’t prove this, but maybe, just maybe, the public attention and outcry finally took its toll on the Trump administration; it would continue to fight the stay, but it recognized that it was losing in the field of public opinion, and at the very least needed to fight in a lawful matter. Trump could continue the bluster to satisfy the base, but the administration would act lawfully so as not to infuriate the court.

Jennifer Daskal is an associate professor at American University Washington College of Law (WCL) and former counsel to the assistant attorney general for national security at DOJ. Amanda Frost is a professor at WCL who teaches and writes in the areas of immigration and constitutional law.