He has been in office barely a week, and already the lawsuits are coming fast and furious against President Donald Trump's executive order barring foreign nationals from seven Muslim countries, including Iran, Iraq and Syria, from entering the United States. Did the President abuse his power? On Monday, at least two more lawsuits – one from Washington State's Attorney-General and one from a Muslim civil-rights group – hit the courts alleging he did. Over the weekend, judges forbade any deportations under the executive order. Ultimately, the travel ban itself could fall, in a case that seems headed for the Supreme Court. And late yesterday, reports emerged that acting U.S. Attorney-General Sally Yates, an appointee of Barack Obama, had told the Justice Department not to defend the executive order in court. Mr. Trump fired her.
What is the source of Mr. Trump's authority to make the executive order?
The order's first words cite the "authority vested in me as President by the Constitution" and the Immigration and Nationality Act. That act gives him the power to suspend entry by foreigners deemed detrimental to the country. Article 2 of the Constitution gives the president power over foreign relations.
Could a Canadian government make a similar executive order, without a vote in Parliament?
Yes. The Immigration Minister has similar authority under immigration law to give binding directions to immigration officials, according to Lorne Waldman, a Toronto immigration and refugee lawyer. Non-citizens have rights under the Canadian Charter of Rights and Freedoms once they reach Canada.
What, if anything, could Congress do to limit Mr. Trump's power?
It could modify or throw out the part of the immigration law that gives the president the power to suspend entry to some foreigners. That would "cut the legs out" from the order, according to law professor Peter Spiro of Philadelphia's Temple University. The Constitution gives the president a more amorphous, and therefore much shakier, foundation for the order, he says. But the Democrats don't have enough votes on their own and are unlikely to persuade enough Republicans to join them.
Do non-citizens in the U.S. have constitutional rights?
"There's almost like a parallel constitutional universe with respect to immigration," Prof. Spiro, who specializes in immigration law and the Constitution, said in an interview. "The Constitution applies in watered-down form, if at all, to aliens in the context of immigration proceedings." Those with green cards permitting them to live and work in the U.S. have the right to some procedural due process. Other non-citizens have no more procedural rights than what Congress extends them in legislation. "If you are coming here on a student visa or a tourist visa or even on a longer-term employment visa and you are seeking to enter the United States, you basically have no constitutional rights. But that's under the established precedent. It's not to say it can't change in the wake of this controversy."
How has the legal community responded to the executive order?
Hundreds of lawyers have volunteered their services, many of them rushing out to major airports to identify who might have legal claims, according to Melissa Keaney, a staff attorney in Los Angeles with the National Immigration Law Center. On the weekend, five judges issued injunctions halting parts of the executive order from being carried out – for instance, the deportations of those detained. One such injunction is nationwide and came after lawyers chose two Iraqis in a class-action lawsuit as representatives of all who are subject to the executive order and who have arrived in the U.S. These injunctions are not considered major precedents. More cases are coming, including one brought Monday by Bob Ferguson, Washington State's Attorney-General, to stop the U.S. from keeping out people from the seven designated countries. The Council on American-Islamic Relations filed a lawsuit against what it calls the "Muslim ban," describing it as a step toward a mass expulsion of Muslims by denying them the ability to renew their lawful status.
How did lawyers manage to reach a judge on a Saturday night to stop the deportations?
In non-office hours, a federal "duty judge" is assigned to respond to emergency motions and order a hearing if necessary. The National Immigration Law Center, for instance, filed a legal claim Saturday at 5 p.m. in New York State; a few hours later it filed an emergency motion for a stay. "It's a federal practice mechanism that allows you to try to get in front of a judge immediately, even when it's the middle of the night or the weekend, in cases like this where there's imminent harm threatened," Ms. Keaney said. "In this case our plaintiffs could have been immediately returned to the countries from which they were fleeing as refugees."
What does it mean that so many judges called a stop to Mr. Trump's order?
On the face of it, simply that those challenging the order have a good chance of success and that "the status quo" should be maintained until a full hearing, so no one is harmed until the legal issues can be heard in detail. Beyond that, there were three key reasons: First, Ms. Keaney says, there are powerful personal stories (one from an Iraqi who had worked for the U.S. government and had dodged insurgents for two years while trying to obtain an immigrant visa); second, she says, was the chaos erupting at airports and the sense of a nationwide groundswell; and third, says Prof. Spiro, was the "completely slipshod" way the order was adopted and implemented. "As far as we know, there wasn't vetting of the order outside of a small, obviously incompetent circle of advisers in the White House," he said.
What is the key issue that Mr. Trump and the immigration advocates will be fighting over?
Whether Mr. Trump abused his power. On one level, there are issues of equal treatment of non-citizens who arrive in the U.S. – by nationality and religion. Some observers, such as Georgetown Law School's David Cole, argue that Mr. Trump has been clear that he intended the order to be another form of the "Muslim ban" he had proposed during the election and that, even if no such intent exists, the effect is to discriminate against Muslims. Others, such as Prof. Spiro, say there is a long line of cases in which U.S. courts have permitted discrimination in immigration law. But he believes the Supreme Court could pivot toward a strong defence of constitutional rights, much as it did during the George W. Bush era, in applying U.S. law to suspected terrorists held at Guantanamo Bay, Cuba. "The court is a political body ultimately. Now, it cloaks its decisions in the language of precedent, but justices read the newspapers, they see what's going on around them, they talk to people. And in this case they can see there's something wrong."
Could Mr. Trump's new choice for the Supreme Court wind up hearing the case – maybe even deciding it?
It's possible. It's also possible that the court would expedite the case and that the new judge, to be nominated this week, won't be through the confirmation process, Prof. Spiro says.