-Advocate Deep Mala*
President Trump brought out a highly controversial “Executive Order” banning entry of citizens of seven Muslim nation including Iran, Iraq, Syria, Libya, Somalia, Yemen and Sudan. This ban though part of the campaign promises made by the President Trump have caused global panic and was challenged by several states and individuals (holding Green Card). President Trump has also boasted that people of other Muslims nations like Pakistan and Saudi Arabia will be subject to “extreme vetting”.
This order has given lawyers and judges lots to do as around one dozen law suits have been against this “Executive Order”. American Judicial System has responded quickly to the arbitrary ban imposed by President Trump on entry of entry of seven Muslim countries. Several Judges issued temporary stay grating relief to approve VISA holders and green card holders from being deported fro United States or flights bound for United States. On Friday, Seattle court Judge, Justice James Robert(A Republican appointee) has granted nationwide stay on the order.
President Trump has caused US Justice department to appeal against the order granting stay on the ban imposed by executive order of the President. This appeal has been denied, but the battle has just been joined and neither side is going to give up this easy. Department of Justice was based primarily on two grounds, first one being that the order of the Judge is too broad and the States of Minnesota& Washington do not have locus standi to appeal the executive order passed by the President based on his opinion of national security matters. And the second ground being the court order is arbitrary and conflicts with the rights of president under Immigration law, which grants him the power to impose temporary ban on entry of a class of Aliens from entering USA and that an alien seeking entry into USA is not a citizen and hence has not rights to avail the privileges granted by the constitution of USA.
Trump Supporter’s have responded to criticism on order by comparing the ban imposed by Trump with allegations of then President Obama stopping Iraqis from entering USA for 180 days in 2011, which is not an apple to apple comparison in my opinion. Obama never banned entry of Iraqis, what he did was order revetting of all Iraqi nationals based on FBI request after two Iraqis were arrested in Kentucky (only Two Iraqis charged with terrorism till date). President Trump’s supporters are deliberately misrepresenting facts to justify the ban imposed by Executive Order.
Let us examine the grounds for holding the ban legal. President is the head of Government under US constitution and his powers with respect to foreign relations is absolute except matters specifically delegated to the Senate. Further Federal immigration law includes Section 1182 (f) which empowers President for Suspension of entry or imposition of restrictions by President“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.It gives President power to ban entry of aliens including justification of ban on Muslims claiming Muslims as separate class of Aliens.
The grounds against the order is that the order hits the rights guaranteed under US Constitution. Executive Order is like an Ordinance under Indian law and is subject to review by the Courts specially if any rights are hit by the order. Trump Supporters mistakenly have been arguing that a non citizen does not have any right under US Law. I will like to counter that argument by saying that US Constitution is most unique and it even grants rights to non citizens. The rights guaranteed by US Constitutions can be divided into Rights available to all humans and rights available only to US Citizens. US Supreme court has ruled that 14th Amendment to US Constitution is not limited to US citizens and it includes immigrants. US Constitution law clearly says that“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. US Constitution grants everybody including non citizen’s certain rights and the question here is that if President Trump’s Executive Order violates the rights guaranteed by US Constitution and If yes, then this order is bad in law.
United States of America is a country ruled by law and justice is paramount to the values on which United States of America was founded. In my opinion, the most powerful man in USA is the Chief Justice of Supreme Court and not the President. American Senate makes the law like our Parliament. In case of urgency president has powers to pass executive order, the way Indian system has ordinances. Like India, the Courts of USA are responsible for interpretation of law. However, there is one additional responsibility given to American Courts, which is the power to decide if any particular law or executive order, is encroaching in any way upon the rights or freedoms guaranteed by American Constitution. American Courts are the anointed guardians of rights of people. The Court is protector of rights of everyone including non-citizens and the Court has the authority to strike down entire law or Executive Order to protect the rights guaranteed by US Constitution.
Photo credit: donaldjtrump.com
*Sr Advocate at Delhi High Court