People marching in the “#NoMuslimBanEver” rally in downtown Los Angeles on Sunday. Organized by the Council on American-Islamic Relations, the march was in response to President Trump’s most recent travel ban, which has now been partially blocked by a federal judge in Hawaii.
Mark Ralston/AFP/Getty Images
Updated at 4:15 p.m. ET
A federal judge in Hawaii has partially blocked President Trump’s third attempt to restrict entry into the U.S. for citizens of certain countries. The Department of Justice says it plans to appeal.
The newest version of the travel ban was due to go into effect on Wednesday. Like two previous executive orders, it was challenged in multiple courts. The new ruling by Judge Derrick K. Watson is only one piece of the complicated legal puzzle over the long-term fate of the president’s efforts to limit travel to the U.S.
In his ruling, Watson wrote that the third version of the ban, like those before it, “lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States,’ ” evidence that he says would be necessary for the ban to be enforceable.
As a result, he issued a temporary restraining order that will keep the ban from being enforced for six of the eight named countries — the six majority-Muslim nations. North Korea and Venezuela, which were added in the most recent version of the ban, are not affected by the ruling, and the restrictions on travel from those countries can go into effect.
The Department of Justice said in a statement that the ruling “is incorrect, fails to properly respect the separation of powers, and has the potential to cause serious negative consequences for our national security.”
The White House, in a separate statement, said the judge’s decision is “dangerously flawed.”
“The entry restrictions in the proclamation apply to countries based on their inability or unwillingness to share critical information necessary to safely vet applications, as well as a threat assessment related to terrorism, instability, and other grave national security concerns,” the White House says. “These restrictions are vital to ensuring that foreign nations comply with the minimum security standards required for the integrity of our immigration system and the security of our Nation.”
The ruling in Hawaii v. Trump is the latest in the legal tug of war over Trump’s attempt to impose a ban on travelers from predominantly Muslim nations.
And this temporary restraining order is far from the end of the story. The Department of Justice says it will appeal the decision, and another federal court is also expected to rule on the third version of the ban.
The original ban, signed by the president in the first week of his term, targeted seven countries — Syria, Iraq, Iran, Libya, Yemen, Somalia and Sudan — for 90 days. Syrian refugees were banned indefinitely. The ban also was imposed on lawful permanent residents, commonly known as green card holders, and travelers who had valid visas issued before the ban was to be implemented. That action met with immediate resistance as protesters flooded airports in major cities in support of travelers from those countries. Legal challenges to this first ban were successful as a federal district court and the 9th Circuit Court of Appeals blocked it.
In early March, Trump signed a new executive order. As NPR’s Joel Rose reported, “There are some key differences between Trump’s original order and this one. It applies only to people from six majority-Muslim countries. Iraq has been dropped from the list. Lawful permanent residents or green card holders are explicitly exempt. So are travelers who already have valid visas. And refugees from Syria are no longer banned indefinitely, though the U.S. refugee program is still suspended for 120 days and the number of refugees admitted this year cut by more than half.”
Watson, the judge in Hawaii, blocked that second travel ban too, saying that it was unconstitutional because it disfavored a particular religion. A court in Maryland came to the same conclusion. The parallel rulings were upheld by appellate courts.
That set the stage for the U.S. Supreme Court to intervene. In late June, the justices allowed Trump’s travel ban to take partial effect, but they allowed people with “close familial relationships” with someone in the U.S. to enter the country.
The debate then turned on which familial relationships would be considered valid. The administration interpreted that decision as favoring only certain family members such as parents, spouses, children, adult sons or daughters, sons- and daughters-in-laws, siblings and fiances/fiancees.
Left out were grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of people currently living in the United States.
In September, the 9th Circuit ruled the government couldn’t bar entry to grandparents and other extended family members. However, the Supreme Court did allow the administration to ban refugees even if they had formal ties to U.S. resettlement agencies.
Then, late last month, the president amended the travel ban, as NPR’s Brian Naylor reported:
“The latest version of the travel ban — version 3.0, if you will — limits travel from Iran, Libya, Syria, Somalia and Yemen. The nations of Chad, North Korea and Venezuela have been added. And Sudan, which was part of the original ban, has been dropped.
“The new rules take effect Oct. 18. And unlike previous versions, the new ban is not temporary. It will remain in place until the affected nations comply with stringent requirements for vetting their citizens before they can receive visas to enter the U.S.”
That’s the version of the ban that has now been blocked from going into effect, nationwide — at least for now.
However, the state of Hawaii did not challenge the ban as it applies to North Koreans or Venezuelans. Therefore, the judge’s restraining order does not apply to those portions of the ban, which can be enforced starting Wednesday.
Modern American history has never seen as full-scale an effort to sabotage a valid law as we have with President Trump and the Affordable Care Act — a law whose legality has been upheld twice by the US Supreme Court.
The president has a legal obligation, under Article II of the US Constitution, to “take Care that the laws be faithfully executed.” That means he must make sure that our laws are implemented in good faith and that he uses his executive discretion reasonably toward that end.
His agencies likewise have a legal obligation, under the Administrative Procedure Act — the statute that sets the rules for our entire federal regulatory apparatus — not to use their power to engage in arbitrary action.
The intentional, multi-pronged sabotage of the ACA that we have seen over the past nine months — reaching new heights since attempts by Congress to repeal the law failed — violates both Trump’s constitutional obligations and quite possibly the obligations of his Department of Health and Human Services.
Trump does not get to say that he can best help the law by killing it and thereby forcing Congress to start afresh. His obligation is to “take care” that the laws that are already on the books are carried out. Since he has flouted this obligation, lawsuits by individuals and states harmed by the damage he causes may now be in order.
To be sure, the take care clause is rarely invoked. Indeed, it does not appear ever to have been used successfully in modern times as an offensive tool against a president. Cases are rare because most experts agree that the president must have discretion with respect to how he enforces a law; drawing lines that separate when that discretion is exercised reasonably and, instead, when it changes too much of the law to be “faithful” to it (as the clause requires) is extremely difficult.
But whatever divides exist about invoking the take care clause, this is the extreme case in which it is clear-cut that the clause has been violated. Far from using his power to faithfully implement the ACA, the president is actively using his power to destroy it. He does not hide his motives.
A multi-front attack on the law
Let’s review the most recent acts of sabotage. The ACA requires the federal government to support the open enrollment period — in which individuals must sign up for insurance or lose their chance to do so. The ACA requires the federal government to, among other things, maintain a website and work with local “navigators” and other groups to educate consumers and encourage them to sign up for insurance.
Trump instead has set out to make open enrollment a failure.
He cut the enrollment period in half, from three months to six weeks. He shut down the federal enrollment website for nearly 12 hours every Sunday during the period — a crucial window when working Americans might enroll. He has canceled already- scheduled events in which federal officials had planned to visit states and help with enrollment. He cut advertising for enrollment by 90 percent, from $100 million to $10 million, even though his administration charged insurers on the exchanges user fees to generate money for that same advertising. (Those fees far exceeded $10 million.)
One day before the new budget year began on September 1, he announced a 40 percent cut to those navigator programs — after promising them $60 million in grants in May, and afterhis administration had said it would support navigators in order to partly offset the obstacles erected by the curtailed enrollment period.
Why would President Trump want to stifle open enrollment? Because that would seriously weaken the ACA’s insurance markets, which require a mix of healthy and sick customers to be stable. In line with that ambition, he also signed an executive order last week that directs his agencies to consider policies that would allow the sale of new group and short-term plans lacking many ACA protections. These alternative plans are likely to pull even more healthy individuals out of the insurance markets.
The same day, Trump announced his plan to cut off important cost-sharing payments that the ACA promises to insurers to compensate them for reducing what individuals have to pay in premiums. A case is pending in federal court challenging the legality of those payments. The president’s defenders may therefore argue that he has more leeway to resist implementation of that requirement.
Even so, nearly every single week for past last nine months, Trump has threatened to cut off these payments, creating extreme instability in the insurance industry. In response, some insurers had already raised rates for 2018. So the damage was done well before the official policy was announced. And Trump has made clear that his goal in cutting off the funds is harming the law. He tweeted the same day the policy was announced: “ObamaCare is causing such grief and tragedy for so many. It is being dismantled …”
Former White House adviser Steve Bannon was blunter. Trump wanted to “blow that thing up,” he said this week.
Distinguishing this case from other examples of presidential discretion
This situation is very different from those in which scholars have disagreed over whether the take care clause applies. This is not about whether the president must defend a law he thinks is unconstitutional before the Supreme Court has ruled. That question came up in the context of same-sex marriage, when President Obama declined to defend the constitutionality of the federal Defense of Marriage Act, or DOMA. Obamacare, in contrast, has survived two major showdowns in the Supreme Court. (And, notably, Obama enforced DOMA while the case was pending, even as he declined to defend it.)
This is also not a case in which the president faces tough decisions about how to use limited resources to achieve policy priorities. Such questions arose in last year’s battles over Obama’s immigration policies.
Trump’s strangulation of broad parts of the ACA does not stem from his decision to prioritize what he views as other, more important sections of the law. No budgetary or policy justification has been offered by the White House for canceling enrollment support; nor has anyone claimed taxpayers will be saved money. In fact, the Congressional Budget Office estimates that the president’s efforts to shut down cost-sharing reduction payments to insurance companies will cost the federal government almost $200 billion.
(That’s because some insurance premiums will rise by more than 20 percent, in response. And when the premiums rise, the financial subsidies the ACA promises individuals to help them buy insurance must also rise, with the government footing the bill.)
Nor is HHS now using time and money saved by undermining one part of the law in order to buttress another part. Further betraying Trump’s unfaithful stewardship of the law, even states that have requested waivers to pursue conservative reforms are being stonewalled by the administration. News reports say the president has told his agency staff that he does not want any such waivers approved, lest they stabilize the insurance markets.
Finally, this is also not a case about the president underenforcing a law to temporarily smooth administrative implementation of it. President Obama delayed enforcement of several ACA deadlines, including the requirement that employers provide insurance, because he believed that delay was necessary for the law to ultimately succeed. He was criticized for that, and some critics cited the take care clause.
Trump’s (stated) motives matter to the legal case against him
Nonetheless, President Obama offered reasons why he believed his actions would ultimately help the law. In contrast, Trump, after chiding Congress for failing to abide by its “pledges” to repeal the ACA, tweeted that he was taking on that job himself: “So we’re going a little different route. … [I]n the end, it’s going to be just as effective.”
And this week he added, “Obamacare is dead. It’s finished. It’s gone.”
Motive matters, with respect to whether the president exercises his power legally. If the president exercises his discretion to further the purpose of a statute, he complies with the take care clause. If he uses his power pretextually or unreasonably, he violates the Constitution. President Trump’s motives are unambiguous.
Congress could jump in and fix some of the problems Trump is causing. It could pass a statute clarifying the propriety of the cost-sharing reduction payments that Trump ended. It also could override by statute any agency regulation that, as in the case of last week’s executive order, aims to destabilize the insurance markets. It would certainly be much better for our country for Congress to act than for citizens or states to have to sue the executive branch. But if Congress doesn’t act, lawsuits may be an important tool.
The president has a right not to like the ACA. But so long as it is the law of the land, he does not have the right to undermine it through the use of executive power.
“Faithful” execution of a law that is validly on the books is what the words of the Constitution require of Trump — until Congress decides otherwise.
A British invasion force under General John Burgoyne surrendered to the Continental Army under General Horatio Gates at the Battle of Saratoga on October 17, 1777. The battle would be a major turning point in the war as it would convince France that the Americans were capable of defeating the British. Subsequently France began supplying aid to the Continental forces and would eventually enter into a formal alliance.