President Donald Trump wanted to shake the country, as well as the rest of the world, with some actions that he had promised his supporters within a few days of taking the reins. And shake he did with some of his executive orders, prominent among which was announcing a temporary ban on entry of people from seven Muslim countries, and refugees who had been previously cleared for asylum in the US.
Trump had also signed executive orders, at the same time, stopping implementation of some provisions of Obama’s healthcare policy, and asking Homeland Security to make preparations for his infamous wall with Mexico. But nothing roused up the populace here and abroad more than his orders banning entry of people from seven Muslim countries, not to say about the chaos and confusion the order created in the country and abroad.
In a country where nearly 300,000 people arrive every day through dozens of airports, hundreds were detained and turned away because they were caught in this web of travel ban. Reports of elderly parents and small children trying to rejoin their families who were either turned back or detained for hours at the airport hit the headlines in the first two days of the order.
The travel ban or, for that matter, all other future laws governing immigration and other promises that President Trump has made will continue to be dominant topics in this country fora the coming years
Such was the confusion about interpretation of the order that even immigration officials were not sure if they were supposed to only stop visitors or if the ban extended to all immigrants irrespective of their visa status, whether they were just entering or they were returning with valid permanent residence visas.
Scores of people with valid visas were first detained, and then released sometimes with the help of their lawyers. Following the order, the State Department canceled some 60,000 visas issued to students from the banned countries.
But the United States is anything but a lawless state. Even as people whether directly or indirectly affected by the ban, whether they belonged to the banned countries or not, whether they were Muslims or not, most people were aghast at the discriminatory nature of this executive order. The executive order was issued in the name of securing the country against purportedly terrorist elements which could damage the country, but the very nature of the argument that terrorists were confined only to the seven countries fell on its face considering that all known terrorists or groups of terrorists in past several years came from somewhere else.
This highly dubious order, coupled with the gross act of discrimination it demonstrated against people from largely Muslim countries, shocked a vast group of people in the country leading to country wide demonstrations first, and legal challenges in the courts immediately thereafter.
The first couple of court orders stayed the execution of the travel ban in very specific ways such as halting of deportation of people held in the airports. But the most shattering jolt to the travel ban order came later from a Federal Court in Seattle, Washington, where the judge stayed execution of the order nationwide.
In giving the restraining order, the judge sided with Washington State’s attorney general that “the order is illegal, (it) is causing and will continue to cause irreparable harm in Washington, and is contrary to the public interest. The court should fulfill its constitutional role as a check on executive abuse and temporarily bar enforcement of the order nationwide.”
Understandably, the restraining order infuriated the administration to no end. President Trump tweeted that he could not understand how a “so-called judge” could ignore the country’s security interest. The federal government appealed, and for two full days a Federal Appellate Court in Washington State heard arguments on both sides after denying an emergency request to lift the restraining order from the lower court.
As the country waited with baited breath the decision of the Appellate Court, an unhappy resident kept on criticising the court’s interference in his executive order and expressing his concerns that “bad elements” could infiltrate the country as long as the travel ban is kept in abeyance.
Unfortunately, the Appellate Court saw the travel ban order otherwise. In a landmark decision, the court upheld the lower court’s restraining order on the travel ban. The three-judge panel, suggesting that the ban did not advance national security, said the administration had shown “no evidence” that anyone from the seven nations -- Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen -- had committed terrorist acts in the US. The ruling also rejected Trump’s claim that courts are powerless to review a president’s national security assessments. Judges have a crucial role to play in a constitutional democracy, the court said.
What is most remarkable is the reminder by the court to the executive branch that it did not have a free hand in unleashing on the country laws that are not constitutional. “It is beyond question,” the decision said, “that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
And this is the crux of the problem that President Trump will have to face in the next four years. Trump will realise that the country cannot run on executive orders alone. He will realise that there are three separate branches of administration in the country, and he heads only the executive branch.
The two other branches, the congress and judiciary, are checks and balances on his authority. And all of these three operate under one constitution. No one is above the constitution and no order or law can infringe the rights given to the individuals under the constitution. The travel ban or, for that matter, all other future laws governing immigration and other promises that President Trump has made will continue to be dominant topics in this country for the coming years.
No one knows what congress will come up with in this regard, but one thing is certain is that the judiciary, the ultimate watchdog of constitutionality of all laws will have a big role in all such future legislation.
Ziauddin Choudhury has worked in the higher civil service of Bangladesh early in his career, and later for the World Bank in the USA.
