[6/28/2017 Update: When the travel ban is heard in the Supreme Court’s October 2017 term, the core issue will be the President’s leadership of the executive branch, an issue mired in administrative law as much as immigration and Constitutional law.] Recent events paint a portrait of what President Trump is like as a boss. It is not flattering. The Ninth Circuit’s pronouncement that “Immigration, even for the President, is not a one-person show” in its latest rejection of the travel ban reveals his autocratic style. President Trump’s contradictory defenses of the travel ban while litigation proceeds shows his disregard for law and agency expertise. This style of leading the executive branch raises legal as well as prudential concerns.
In Administrator-In-Chief, 69 Admin. L. Rev. 347 (2017), I set forth a framework for understanding the role of the president as chief administrator for the executive branch. The article drew upon Obama Administration executive actions pertaining to immigration: USCIS’ implementation of deferred action as agenda-setting in immigration enforcement, ICE’s prioritization of serious criminal offenses in the issuance of immigration detainers as rationalized agency discretion, and the DOJ’s use of priority docketing in immigration courts to deter Central American asylum-seekers as a failure of coordination with DHS. Drawing on interviews with DHS officials and other policymakers, the article argued that shoring up procedural legitimacy strengthens the President’s basis for intervening in administrative policy.
President Trump’s immigration policies illustrate even more starkly the need for legal and prudential criteria that circumscribe exercises of executive power. Within weeks of taking office, Trump hurriedly released three executive orders on immigration that tested the limits of executive power. The travel ban temporarily suspended entry of noncitizens who are nationals of six Muslim-majority countries deemed national security threats and ceased the refugee resettlement program. It has been enjoined in numerous courts on Constitutional and statutory grounds, and
it is likely to reach the Supreme Court [6/28/2017 Update: it will be scrutinized by the Supreme Court following a partial implementation this summer].
What does the travel ban episode tell us about President Trump’s leadership of the executive branch? Legally, it raises concern over his Constitutional duty to supervise the immigration bureaucracy, fidelity to Congressional statutes and agency regulations, and deference to legal precedents emerging in courts. Others have written incisively about those concerns. This essay explains how the travel ban threatens prudential norms that I call the “3C”: coherence, consistency, and coordination.
Lack of Policy Coherence. Trump has shown himself – sold himself – as disinterested in policy. Even in his signature policies such as immigration, he relied on policy advisors outside the agency such as Steve Bannon rather than turning to agency insiders. Media reports and Congressional testimony reveal that Trump had not fully briefed DHS Secretary John Kelly, Acting Attorney General Sally Yates, or Secretary of State Rex Tillerson when he issued the first travel ban. Consequently, nobody lent their policy expertise on the proper terminology and permissible means of accomplishing the president’s goals. It showed. In fairness, the travel ban tracked campaign promises regarding national security and mistrust of immigrants. This initial clarity, when combined with more recent statements, clouds the real purpose of the bans. As courts have inquired: is the travel ban motivated by religious or national origin discrimination against Muslims? The lack of priorities in immigration enforcement shares this attribute, as does the rescission of DAPA while retaining DACA.
Disinterest in Consistency and Agency Expertise. The chaos that overtook airports when the first travel ban rolled out was the outward manifestation of infighting within the executive branch. DHS, CBP, and State Department lacked implementation policies for travel ban 1.0. From day one, the White House and DHS disagreed over whether to exempt legal permanent residents from the list of banned countries, with White House Chief Strategist Bannon urging the President to overrule Secretary Kelly and other legal experts, who sought to exempt legal permanent residents. The intra-branch dispute over green card holders was eventually resolved in favor of Secretary Kelly, who in the second travel ban included an exception for legal permanent residents in section 3 of the second travel ban and a joint announcement by three cabinet heads following release of a DOJ-DHS letter urging the President to bolster national security. Trump’s disregard for agency experience is also evident the firing of Acting Attorney General Sally Yates for expressing skepticism over the orders’ Constitutionality and the dismissal of a State Department dissent cable signed by 1000 employees, impeding an internal check on executive administrative power.
Coordination that Compromises Agency Independence. As vividly illustrated in FBI Director James Comey’s testimony to Congress and a White House cabinet meeting doting on the President, the White House insists on loyalty as strongly as it punishes dissent. Early on, Trump installed operatives in agencies to serve as eyes and ears for the White House. Secretary Kelly has vigorously defended the conduct of the White House, and and the DOJ defends Kelly’s DHS and the White House in turn. Policy veterans remark on the unexpected extent of DHS and DOJ coordination, given that the DHS was structured precisely to create independence deemed lacking in the legacy Immigration and Naturalization Service.
Immigration policy has been a defining part of the Trump Administration, just as he promised it would be. In some respects, the policy implementation echoes the failure and success of the Obama Administration in its heavy reliance on executive power and enforcement discretion. But President Obama channeled his executive actions through experts and agencies. President Trump has concentrated power in the White House and insulated executive power from agency expertise. This style of governance, more akin to the running of a corporation than a democracy, poses a dilemma for the President as Administrator-in-Chief. Primacy of federal power in immigration law is ordinary due to long traditions of deference to the executive branch. Every nation has a claim to control its borders, and the President is the face of the nation. The travel ban, however, introduces extraordinary incursions on norms of Constitutional and administrative procedure and governance. In the words of the 9th Circuit Court of Appeals, ruling against the ban, “Immigration, even for the President, is not a one-person show.”
Ming H. Chen is an Associate Professor of Law at the University of Colorado Law School.