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Limits of Presidential Power Key Question in Travel Ban Challenge


President Donald Trump's legal battle over his executive order on immigration looms as the first major constitutional challenge to his authority as president.

The fate of Trump's controversial executive order on immigration is in the hands of the U.S. federal court system and may eventually be headed to the Supreme Court. Trump's order suspended refugee admissions and temporarily banned entry of people from seven Muslim-majority nations, but it was put on hold by a federal judge last week.

Both Trump critics and defenders see the legal battle now playing out as a key test of the president's executive authority under the Constitution and the rights of the judiciary branch to hold him accountable to the rule of law.

Trump: It's about security

Trump again defended his executive order Wednesday in Washington during a speech to law enforcement officials from around the country.

"It was done for the security of our nation, the security of our citizens, so that people come in who aren't going to do us harm," he said. "And that's why it was done."

Trump got backup this week from his homeland security secretary, John Kelly, who explained the rationale behind the travel ban during an appearance before the House Homeland Security Committee.

"Americans must feel safe to walk down the street, to go to the mall or to a nightclub, anywhere or anytime," Kelly told lawmakers, including Democrats who have spoken out against the order. "Fear must not become the status quo as it has in so many parts of the world."

FILE - Senate Minority Leader Chuck Schumer of New York has urged congressional Republicans to rethink their support for Trump. "We need Republicans to set aside partisan considerations in favor of doing what's best for the country," he said.
FILE - Senate Minority Leader Chuck Schumer of New York has urged congressional Republicans to rethink their support for Trump. "We need Republicans to set aside partisan considerations in favor of doing what's best for the country," he said.

Fierce opposition continues

Trump's order sparked demonstrations across the country in the days following its implementation, and Senate Minority Leader Chuck Schumer of New York and fellow Democrats seized on the issue to complain that the president was exceeding his power.

Schumer urged congressional Republicans to rethink their support for Trump.

"We need Republicans to set aside partisan considerations in favor of doing what's best for the country," he said. "Otherwise, our institutions of government, our Constitution and core American ideals may be eroded."

Opponents of the travel ban charge the executive order is discriminatory and unconstitutional. Trump, however, may have history on his side regarding presidential action to regulate immigration, legal expert Dan McLaughlin said.

Delegated authority

McLaughlin, a columnist for the conservative news site National Review, told VOA's Persian service the president was relying on authority "delegated to him by Congress," and that traditionally federal courts have given presidents wide latitude in regulating immigration.

"This is not a radical departure from U.S. policy," he said, adding that in his view the demonstrations sparked by the immigration order "have been very extreme and hysterical and worried the U.S. was slipping into some sort of fascist country."

The federal courts will now decide whether Trump has gone beyond his presidential authority in issuing his executive orders.

"Certainly both Republican and Democratic presidents have used executive orders at various times," said George Washington University Law School professor Paul Schiff Berman. "The issue, I think, is whether these executive orders go farther, and I think that they do both in their scope and in the incredibly ill-considered way in which they have been issued."

From CEO to commander in chief

Before turning to politics, Trump built a reputation as a dynamic leader with an international brand in the business world.

Now as president, dealing with the limits of executive authority and the checks applied by Congress and the court system could prove to be a challenge for him, said American University's James Thurber, a professor of government and founder of the university's Center for Congressional and Presidential Studies.

"He's impatient," Thurber said of Trump. "We have separation of powers in our democracy. It is slow, it's deliberative and it's transparent. As a businessman, he likes to say, 'You're fired!' or 'Let's get this done; let's move ahead.' Well, in a democracy you can't do that, and that is going to frustrate him."

FILE - House Speaker Paul Ryan, pictured after meeting with then-President-elect Donald Trump in New York, Dec. 9, 2016, says Trump "gets frustrated with judges. ... But he is respecting the process, and I think that is what counts at the end of the day."
FILE - House Speaker Paul Ryan, pictured after meeting with then-President-elect Donald Trump in New York, Dec. 9, 2016, says Trump "gets frustrated with judges. ... But he is respecting the process, and I think that is what counts at the end of the day."

While Democrats are critical, many Republicans, including House Speaker Paul Ryan of Wisconsin, continue to back the president and resist the notion that he is dismissive of the courts.

"They're respecting the separation of powers and the process," Ryan told reporters at the Capitol this week. "Look, I know he is an unconventional president. He gets frustrated with judges. We get frustrated with judges. But he is respecting the process, and I think that is what counts at the end of the day."

A divided public

Recent polling suggests the public remains divided on Trump's immigration move. A new Morning Consult/Politico poll found 55 percent of the people surveyed supported Trump's temporary travel ban from the seven majority-Muslim countries, while 38 percent opposed it. The numbers were different in a recent Quinnipiac poll, which found 51 percent of those polled opposed the immigration order, while 46 percent supported it.

It's likely the Supreme Court will have the last word on Trump's travel ban and on the issue of presidential authority in this case.

Nana Sajaia of VOA's Georgian Service contributed reporting.

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    Jim Malone

    Jim Malone has served as VOA’s National correspondent covering U.S. elections and politics since 1995. Prior to that he was a VOA congressional correspondent and served as VOA’s East Africa Correspondent from 1986 to 1990. Jim began his VOA career with the English to Africa Service in 1983.

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