As Trump Defends Muslim Ban, Courts Become Crucial Buffer Against Executive Power

The Trump administration defended president’s revised ban on travelers from six majority-Muslim countries this week in an arena where many of its policies are bound to take more permanent form or be thrown out — a federal courtroom. In a hearing on Monday, the Trump administration told an expanded panel of 13 judges on a Virginia federal appeals court that the purpose of the revised 90-day ban is to protect national security, not to heighten discrimination, regardless of Trump’s public statements indicating that Muslims would be targets of his policies.

A ruling is expected in the coming weeks, and will likely hinge on whether the court decides to consider Trump’s intent in ordering the ban. Omar Jadwat, an attorney for the plaintiffs with the American Civil Liberties Union (ACLU), told the court that Trump’s public statements about Muslims and refugees show intent to discriminate based on religion, which violates the Constitution and sends a harmful message to the entire Muslim community. Trump’s attorney said the ban targets certain countries because they harbor “terrorists” and are not capable of providing accurate information about travelers, so the court should assume Trump intends to protect national security within the bounds of the law.

During the hearing on Monday, the judges wondered whether they should remain “willfully blind” to Trump’s campaign statements calling for a ban on Muslim travelers and various xenophobic remarks about the apparent danger posed by Muslims and refugees. They also asked Jadwat if the ban would be legitimate if Trump had not won the presidency and a different candidate issued the order.

“If you apply that reasoning, this is not the list of countries that you actually come up with,” Jadwat said, referring to a draft report by the Department of Homeland Security showing that most suspected terrorists hail from different countries or were born in the US. “I’m saying that, if this order were legitimate, if it were actually doing what it said it was doing, it would do something different.”

Trump issued the executive order that established the initial Muslim ban, which has since been revised after being thrown out in court, during his first week in office. Since then, Trump has issued dozens of executive orders at a pace unprecedented for a modern president, each with plenty of fanfare and media controversy. Republicans regularly attacked President Obama for usurping Congress with executive orders when lawmakers deadlocked over key issues such as immigration and gun control during his second term. Now, the White House is boasting about Trump’s use of executive orders in the conservative media as proof that the novice statesman can get things done.

The onslaught of executive action is keeping attorneys busy. The lawsuits began shortly after Trump’s inauguration, when the ACLU garnered a wave of support after winning an injunction against the president’s travel ban and freeing Muslim travelers stranded in airports. Since then, dozens of high-profile lawsuits have been filed against Trump and his administration, many stemming from the travel ban and other executive orders.

Nathan Goetting, a law professor at Adrian College and editor of the National Lawyers Guild Review, told Truthout that Trump’s flurry of executive action is an “outgrowth of a long-developing problem” at the White House that can be traced back to President Nixon and beyond. For decades, there has been an “incremental aggrandizement” of presidential power, as presidents such as George W. Bush sought to shape federal policy and take military action without congressional approval. Legal challenges can be a powerful tool to break the chain of precedent and keep executive power in check.

“There is no downside to challenging Trump in court,” Goetting said. “That’s our best hope for the most egregious actions to be checked.”

However, all executive actions are not created equal, especially in the Trump era. Last week, as the president Trump was preparing to sign an executive order on religious liberty, the ACLU threatened to sue the White House if the order contained provisions making it easier for government employees and contractors to discriminate against LGBTQ people and other marginalized groups. Such provisions were included in a draft leaked in February but did not make it into the final version Trump signed last Thursday. The ACLU quickly said it would file a lawsuit anyway.

Critics on both ends of the political spectrum said Trump’s order had more bark than bite, leaving social conservatives disappointed. The order could make it easier for churches to violate a federal law barring their participating in elections, but Christian conservatives have been openly violating that law for years without much consequence. The order also directs federal agencies to develop new rules exempting religious groups from offering insurance coverage of birth control, but the White House is already under court orders to loosen Obama-era contraception requirements.

Like the appeals court considering Trump’s intent behind the travel ban, observers were left to discern whether the religious order was an act of solid policymaking or simple pomp designed to boost the image of an unpopular president and rally his base. The ACLU reversed course the day after the order was issued, saying in a statement that the organization had decided not to file suit after further review. ACLU Executive Director Anthony D. Romero said the order directing federal agencies to revisit requirements for contraception coverage does set the stage for future court battles, but on its face, the religious order amounts to an “elaborate photo op with no discernable policy outcome.”

“The directive to federal agencies to explore religious-based exceptions to health care does cue up a potential future battle, but as of now, the status quo has not changed,” Romero said.

As the ACLU’s about-face suggests, progressive lawyers are particularly on guard under Trump’s presidency, especially with both houses of Congress under GOP control. Trump has been sued over the travel ban as well as alleged conflicts of interest and other ethics concerns arising from what critics say is Trump’s failure to fully divest from his vast business empire. Environmentalists have long used federal laws like the Clean Water Act to hold the government accountable, and many of the lawsuits against the Trump administration challenge his executive orders directing federal agencies to expand fossil fuel production and roll back environmental protections.

Environmental and Indigenous groups are suing the administration over executive orders securing key permits for building the Keystone XL and Dakota Access pipelines. Last week, environmentalists filed a lawsuit over an order reversing President Obama’s decision to permanently ban offshore oil and gas drilling in large swaths of Atlantic and Arctic Oceans, a move activists say is clearly illegal. The administration has also been sued for reopening federal lands to coal mining before completing a promised environmental review, keeping a rare bumblebee off of the endangered species list and pursuing plans to build a wall on the southern border without considering the environmental risks.

Alyson C. Flournoy, a professor of environmental law at the University of Florida, told Truthout that Trump’s executive orders certainly undermine efforts to protect public health and natural resources, but they are more of an indication of Trump’s policy direction than policy changes in their own right.

“Most of these moves could have been initiated by the agency heads without the president’s express direction,” Flournoy said in an email. “Signing an executive order seems more a way for the president to publicly claim ownership of the action than an effectual step. Rolling back Obama executive orders related to climate is perhaps the most immediate and significant, albeit expected, step in these.”

Flournoy said Trump’s most significant executive order related to the environment was the late January order requiring federal agencies to repeal two regulations for every new one they put in place. The Natural Resources Defense Council, the Communication Workers of America and other groups promptly challenged the order in court. This order is especially significant because it is bolstered by deregulation efforts in Congress.

“The deregulatory actions initiated by Congress and approved by the president pursuant to the Congressional Review Act are also more potent than the rule-specific executive orders,” Flournoy said.

Unlike this legislation passed by Congress, fulfilling major executive orders will require winning bureaucratic battles as well as court challenges. For example, Trump has ordered the Environmental Protection Agency (EPA) to roll back President Obama’s signature Clean Power Plan to curb coal consumption and major carbon emissions, but the agency has to engage in a rulemaking process and offer a solid rationale for rescinding the rule. Under Obama, the EPA built an exhaustive and court-approved scientific case for implementing the plan.

Flournoy points out that Trump has many other tools at his disposal for influencing policy besides issuing executive orders.

“In many ways, the appointment of someone as extreme as Scott Pruitt as [EPA] administrator remains a far more significant use of the president’s power, because that clearly signaled and determined the direction he intends the agency to take,” Flournoy said.

Pruitt attracted a lawsuit against his agency after casting doubts on the connection between manmade carbon emissions and climate change in a television interview, a position that flies in the face of the agency’s own scientific findings.

In addition to his appointments, the Trump administration can simply choose not to enforce environmental regulations that it doesn’t like.

“Inaction is a powerful tool that the Trump administration will clearly use to avoid implementing programs, enforcing existing rules and defending them in litigation,” Flournoy said.

Last month, environmental groups and the attorneys general from 10 states filed separate lawsuits against Trump administration for delaying the rollout of new energy efficiency standards for large appliances such as air conditioners and walk-in coolers that are expected to save as much as $23 billion on energy bills.

Is the number of lawsuits against Trump approaching overkill? Not if we want to keep Trump from advancing reactionary policies and setting a dangerous precedent by expanding presidential power even further than his predecessors have, according to Goetting.

“It’s typical for the president and his officer of the executive branch to be sued, and as progressives we want that to happen — we want to file those lawsuits,” Goetting said.