The Muslim Ban: Time to Reconsider Excessive Deference to the Executive?

Muhammad Elsayed
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Criminal, Traffic, and Injury Law Attorney Fluent in English and Arabic

Much has been written on President Trump’s executive order barring the entry of immigrants from a list of seven Muslim-majority countries.  The majority of those decrying the so-called “Muslim ban” raise moralistic arguments such as (“we’re better than this,” “America should be a beacon of hope and a refuge for the helpless,” or “we should not repeat the historical mistakes that we made with other refugees, such as Jewish refugees in World War II.”)

All of these arguments are legitimate and address an important angle of this controversy.  However, the problem with this approach is that the fate of the Muslim ban will likely be sealed (one way or the other) by federal courts, not by public opinion alone.  Public opinion can certainly impact judges on the margins.  And maybe with enough public pressure members of Congress may reluctantly come out against the ban in the fear of a backlash by voters in two years.  But in the meantime, the final word will likely be that of federal judges.

Perhaps the biggest hurdle facing the dozens of individuals, non-profits, public interest groups, and states challenging the constitutionality of the Muslim ban is the long-standing Supreme Court precedent that courts must greatly defer to the executive branch on matters of foreign affairs and in times of war.  This precedent has featured prominently in the government’s defense of the ban, and it needs to be revisited and seriously reconsidered. 

Consider the Supreme Court decision of Korematsu v. United States

Following the Pearl Harbor attack, President Roosevelt issued an executive order directing the establishment of military zones and rules for their governance.  The military declared the entire west coast a military zone and ordered the internment of all Japanese Americans.  Korematsu was detained for refusing to obey the internment order, and he filed a habeas corpus petition that made its way to the Supreme Court.  The Court denied his petition, reasoning that in times of public danger and war, military decisions and executive orders must be given deference by courts that are ill-suited to make such decisions.  Despite the apparent racial classification at issue, which the Court acknowledged would ordinarily make the President’s order suspect, war time requires deference to the executive branch, the Court reasoned. 

The Korematsu decision today is widely seen as one of the more embarrassing examples of judicial complacency in the face of obvious constitutional violations.  But its reasoning lives on.  At least one Trump aide has boldly cited the internment of Japanese Americans as valid precedent for creating a Muslim registry.  And the deference at the heart of Korematsu continues beyond the strict context of war time decisions.  On matters of foreign affairs and national security, the Supreme Court has established a pattern of deferring to the executive branch, often citing its “customary policy” of deferring to the President in matters of foreign affairs and national security. 

That “customary policy” is problematic.  First, the lines between foreign affairs and domestic policy are not so neatly defined anymore, particularly with the world’s increased globalization.  Take, for instance, the classification of a foreign group as a “designated terrorist organization.”  One might think this is simply a foreign affairs matter; an area that the executive branch is far better equipped to handle than the courts.  But consider that designation in conjunction with laws that criminalize acts that provide “material support” to designated foreign terrorist groups.  Now an American citizen, born and living in the U.S., can find himself facing dozens of years behind bars for online comments that are deemed supportive of a designated terrorist group, as can a member of a non-profit group teaching conflict resolution skills in a war zone (see, e.g., Holder v. Humanitarian Law Project).  The impact of the designation goes well beyond “foreigners.”  Likewise the brunt of the impact of the Muslim ban is felt not by individuals with no ties to the U.S., but by permanent lawful residents who have lived here for years, as well as American citizens whose spouses or children are permanent lawful residents or lawfully present on non-immigrant visas.  In other words, simply slapping the label “foreign affairs” on an issue often fails to acknowledge its many nuances and its impact on the constitutional rights of individuals in the U.S. 

Second, the government’s constant refrain that courts should not interfere with executive decisions in “times of war” must be closely scrutinized.  The precedents supporting that level of deference date back to times when war and peace were well-defined occurrences.  We knew what a war declaration looked like, and we knew what an end to war looked like.  There would be an official surrender and a formal exchange of prisoners of war.  But what happens when the war is on a tactic, or worse, an emotion—“terror”?  Will there ever be an end to that war?  More importantly, do we have any idea what an end would look like?  To say that the war on terrorism justifies boundless deference to the executive is to relinquish the crucial role of federal courts in checking and balancing executive excesses—especially in times of perceived threats when constitutional violations are most likely to occur. 

That view finds support in the Supreme Court’s acknowledgment that “concerns of national security and foreign relations do not warrant abdication of the judicial role. We do not defer to the Government’s reading of the First Amendment, even when such interests are at stake.”  Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010).  The Court in recent years has exhibited an increased willingness to question and review executive actions with constitutional implications, notwithstanding the assertion that judges have no business interfering in national security or foreign relations.  The Hamdi, Hamdan, and Rasul decisions regarding the rights of suspected “enemy combatants” all support that courts do have an important role to play in checking the President’s authority, even in times of war. 

Whether or not the challenges to the constitutionality of the Muslim ban are ultimately meritorious is a question for another day.  But, courts faced with such challenges should not be threatened or intimidated by the executive’s invocation of its trump card—“deference.”  Nor should they abdicate their long-established role in interpreting and enforcing the Constitution in the face of executive overreach.

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