Huq: The “Travel Ban” Executive Order as Separation-of-Powers Test Case

The “Travel Ban” Executive Order as Separation-of-Powers Test Case

The White House’s March 6 executive order “Protecting the Nation From Foreign Terrorist Entry Into The United States” (the March EO or the new EO) is a telling blend of change from and continuity with its January 27 precursor. Its changes signal the (current) strength of traditional institutional resistance from courts and bureaucrats to an insurgent, populist presidency. Its continuities are intriguing hints as to how that insurgent presidency might (in the future) seek to tame those institutional bulwarks that currently impede its agenda. How those efforts unfurl will shape the nature of the separation of powers in coming years.

On its face, this week’s order seems a substantial recession from the January 27 order as a direct result of the constitutional concerns aired by the Ninth Circuit Court of Appeals and Eastern District of Virginia. Section 1(i) states that the new order “expressly excludes from the suspensions categories of aliens that have prompted judicial concerns.” And section 1(iv) repudiates “animus toward any religion” as the basis for January EO, a nod to concerns about religious discrimination raised by both courts.

Notwithstanding Stephen Miller’s widely discussed comments on judicial review, the new EO opens with an explicit recognition of the federal courts’ authority. Courts—and constitutional law—are expressly identified as a constraint on a president who has mocked the courts.

The constraining role of law in earlier regimes has been observed by many commentators, such as Rick Pildes and myself, in scholarly work published before the 2016 election. Indeed, a range of recent academic work has illuminated the ways in which lawyers within the executive have shaped policy. 

But this effect of law (as applied by executive branch insiders) is quite distinct from the notion that courts can stand in the way of a high-profile White House policy initiative in the national security domain.  Indeed, for scholars of American judicial review or the separation of powers, the story so far should be rather striking: Against a backdrop of pervasive scholarly anxiety over the efficacy of judicial intervention against presidential over-reaching, here is a case in which courts were not just willing to act, but in which judicial intervention seems to have had direct and fairly unmediated effect.

Read more at Just Security