This past week the fledgling Trump administration issued a series of sweeping Presidential executive orders, many of which may appear to violate United States law and to betray what many think of as the American way of life. While the full scope of impact is still being assessed, it already seems clear that a profound political change is taking place, both here and abroad. Although change can be terrifying, it can also be used as an opportunity for growth. In fact, it is often only in times of great uncertainty that we discover who we really we are. And so, with that in mind, we must ask ourselves: What does it really mean to be an American, and how well are we living up to that standard today?
As many will agree, the beginning of our story as a nation began with a very strongly worded letter: The Declaration of Independence. In this document, Thomas Jefferson proclaimed, very controversially, that “[w]e hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these, are life, liberty, and the pursuit of happiness.” Although noted as self-evident, Jefferson nonetheless felt the need to expressly state that America was founded on the essential premise that the government is responsible for treating its citizens with consideration. Jefferson even went so far as to say that providing equal and impartial justice to all its citizens was the most sacred duty of government.
Because our nation was formed in a context of fear for government overreach, a series of checks and balances were created within the legal framework of our country, helping to ensure that the human rights of our residents would never again be subject to the whims of petty tyrants. One of these checks and balances is the dispersal of federal power among three houses of government: the legislative branch, the executive branch, and the judicial branch. Moreover, the powers of the executive branch, which the President leads, are specifically enumerated in our Constitution. Thus, as the Tenth Amendment reiterates, any powers not delegated to the federal government or prohibited by it to the states are reserved for the states or the people.
The executive power is vested in the President by Article II of the U.S. Constitution. Among his powers are the authority to appoint federal judges, the ability to veto legislation from Congress, and, most broadly, extensive power over foreign affairs and the military. In his capacity as Commander in Chief, the President may act militarily during “actual” hostilities, even without a congressional declaration of war. The President also has the power to appoint ambassadors, to enter into treaties, and even to choose whether or not to recognize the existence of a foreign state.
However, as a public servant, the President is also bound by the very texts that empower him, a named signatory of the explicitly inalienable social contract to which we all must adhere as American citizens. On the day the Forty Fifth President of the United States took office, he swore an oath to faithfully execute his obligations, and to “preserve, protect and defend the Constitution of the United States.” As such, the President must comply both with the U.S. Constitution itself, and with the Supreme Court’s interpretation of that document. Any federal action that violates the U.S. Constitution is illegitimate.
And here is where things start to get hazy. An “Executive Order” is an official and legally binding document signed by the President that gives policy instructions to government agencies, provided that they do not conflict with a law passed by Congress or the Constitution. However, the power to issue these Orders is not expressly granted to the President by the U.S. Constitution. Instead, Article II, Section 1, Clause 1 provides a grant of general “executive power” which has been interpreted broadly over the years to allow Presidents to act in furtherance of their other enumerated Constitutional obligations. The Supreme Court has upheld all but two legal challenges to the President’s power to issue Executive Orders. One of those cases was invalidated for conflicting with an act of Congress, and the other was invalidated for attempting to make new law not authorized by an existing act of Congress or the Constitution.
Until now, no president has ever barred an entire nationality of immigrants from entering the United States without exception. Last Friday, the President issued an Executive Order calling for citizens from seven different majority-Muslim countries, including Syria, Iraq, and Iran, to be barred from permanently immigrating to America. Specifically, this Order used the term “aliens,” encompassing all noncitizens, including lawful permanent residents who are foreign-born. The next day, a Department of Homeland Security official confirmed that this policy would also apply to green-card holders from those seven countries, who are legal permanent residents of the United States. Then, after two days of chaos in airports across the nation, Homeland Security Secretary John Kelly slightly backpedaled from that position, announcing that the ban would not apply to “lawful permanent residents” absent “the receipt of significant derogatory information indicating a serious threat to public safety and welfare.” The ban is purported to apply for a period of at least 90 days, but also asserts the power to extend indefinitely.
This immigration policy is troubling for a number of reasons. First, by discriminating against immigrants on the basis of nationality, the text of the Order violates The Immigration and Nationality Act of 1965, which banned all discrimination against immigrants on the basis of national origin. Specifically, 8 U.S. Code § 1152 (a)(1)(A) proclaims that no person shall be “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.” It follows then that, if this Executive Order is unlawful as applied to any detainees, their continued detention based solely on the order would violate the Fifth Amendment right to procedural and substantive due process. Additionally, in implementing this Order, detainees were on several occasions denied access to legal counsel, despite legal permanent resident status. Further, this Order diminishes the freedom of natural born American citizens to associate with foreign members of their own families. Moreover, it sends a terrifying signal to the world that the United States is no longer a welcoming place for foreign-born people, even those that have lived and worked here for years.
Many challenges to this Executive Order were raised by lawyers across the country over the last few days. Last Saturday, in the Eastern District of New York, Judge Donnelly announced that she was granting a stay to prevent the government from deporting immigrants currently detained. This stay does not invalidate the Executive Order, nor does it allow those currently abroad to re-enter the country. Because the stay does not admit the current detainees to the United States, pending the outcome of this litigation many individuals remain stuck in airports. The stay does, however, preserve the status quo so the hundreds of people being detained currently are not deported while the legality of the Executive Order is assessed. This stay is also encouraging because the granting of such an emergency motion entails an acknowledgement from the court that the petitioners have a strong likelihood of success on the merits of their case.
This crisis has already directly affected the games industry. Navid Khonsari, the Canadian-Iranian creator of the acclaimed 1979 Revolution: Black Friday, has expressed a fear of traveling abroad as a result of the Executive Order, worrying that a sudden policy change could leave him stranded outside the country. As a result, like many individuals caught in the cross-hairs of the so-called “Muslim Ban,” Khonsari feels he is both “on lock down here in America … and deemed an American spy in Iran.” Khonsari went on to say that “[t]his humble position reminds me of why I made 1979 Revolution — we must learn from history and not repeat it.”
Currently, various courts are reviewing the legality of this Executive Order. However, border agents in some cases have been defying those courts’ stays. At least a few federal officials were reported to be trying to force detainees to surrender their green cards. In one incident, an Iranian Fulbright scholar was made to board an Air Ukraine flight, hours after agents had received the court order to stop. “She was on the phone with us and stood up and asked to get off the flight the crew just ignored her” remarked Becca Heller, director of the International Refugee Assistance Project, about the event. Perhaps in anticipation of this noncompliance, Judge Donnelly’s stay also directed the United States Marshals Service to take actions deemed necessary to enforce the court order. Whether they will be called to enforce that directive remains to be seen.
Intensifying matters even further, on Monday former acting Attorney General Sally Yates ordered the Justice Department not to defend the President’s executive order on immigration in court. “I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right,” Yates wrote in a letter to Justice Department lawyers. “At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.” Later that same day, Yates was fired by the President, accompanied by the statement that she had “betrayed the Department of Justice.”
As John Stuart Mill once said in his treatise On Liberty, “human beings owe to each other help to distinguish the better from the worse, and encouragement to choose the former and avoid the latter.” This, my fellow Americans, is not the best of us. Nor will it best us. It will, however, test our commitment to the values we profess. So hold fast, knuckle down, and prepare for a very bumpy next four years.
Author, Ma’idah Lashani, is an Associate at Morrison / Lee. Ma’idah focuses her legal practice in the areas of game dev and intellectual property.