The Legal Intersections Research Centre (LIRC) wishes to add its voice to the university based associations, institutions, and organisations which have expressed concern about an order of the US President barring the entry of people from seven Muslim-majority countries to the US, and suspending refugee admissions to the US (Executive Order 13769, Protecting the Nation from Foreign Terrorist Entry into the United States). Less attention has been paid to other orders issued in connection with Mexico and Mexicans: the planned construction of a border wall to be built between the US and Mexico (Executive Order 13767 Border Security and Immigration Enforcement Improvements), and the deportation of Mexicans, through a targetting of ‘sanctuary cities’ (Executive Order 13768 Enhancing Public Safety in the Interior of the United States).
There has been considerable reporting of the series of injunctions that had ‘stayed’ the operation of the first of these orders after it was issued on 27 January 2017 in a number of US Federal Districts. The original injunctions involved individuals affected by the order; an appellate judgment of the US Federal Ninth Circuit Court , in which the states of Washington and Minnesota (joined by more than 90 high profile businesses and a range of community based organisations and US law professors) successfully proceeded against the President . There has been no further legal action brought at the time of writing.
Other actions have now been brought in connection with Executive Order 13768, in two cases that have commenced in the US Federal District Courts in California and Boston: San Francisco v. Trump, which is currently on foot; an application by the Cities of Lawrence and Chelsea (in the Boston area) has recently been filed. The Order to build ‘Mexican Wall’, and to demand payment from Mexico to do so raises other, serious international legal concerns.
The initial administration of the Order Protecting the Nation from Foreign Terrorist Entry into the United States resulted in distress, confusion, and international condemnation. Border officials denied entry to those holding valid visas and US green cards, though the administration later suggested that green card holders were to be permitted entry – after further screening. Returning holiday-makers and those who had made family visits to countries of origins were denied entry and detained, and others were pulled off flights in transit countries. Families were split up, and humanitarian and medical treatment in the US was delayed. Residents – including those who had lived in the US for years and dual citizens – were among those detained, handcuffed, and their visas cancelled. The injunctions issued have temporarily stopped this happening, pending any Presidential appeal or the creation of new orders.
There has been intense interest and concern, internationally, about the orders. An Australian based centre, LIRC has a research focus on social justice and the role of the public interest in law. We note that there are often good reasons to ask questions about our systems under law, and to consider whether justice is served by law. The legally problematic nature of the orders, and their social and political consequences, are of deep concern. LIRC is concerned that the orders themselves, and the subsequent responses of the Administration, including Presidential tweets directed against judges whose decisions found against the President, represent a challenge to foundational concepts on which liberal democracies such as the US and Australia are based: the rule of law and the doctrine of the separation of powers.
It was with no hint of irony that the new US President, in a speech to the US Department of Homeland Security on 25 January 2017, said that ‘we will restore the rule of law’. Yet his words and actions since taking over the US administration just five days earlier reveal that he not only misunderstands the concept, central to the functioning of liberal democracies, but has acted contrary to its principles. Everyone, including individuals, governments, Presidents, and administrations are bound by law and what is known as the ‘principle of legality’. The rule of law is designed to limit the possibility of unbridled power resting in the hands of one individual. The apparatus of government is subject to checks and balances – that is, that no one individual is able, on their own, to have a grip on absolute power. These checks and balances, or more formally, the doctrine of the separation of powers, reside in the executive, the legislature and the judiciary.
These are familiar concepts in the US, but they are also foundational, though less well understood, in the UK and in Australia. We are deeply concerned that the US President’s words and actions are subverting these principles. There is a reason that governments are required to operate under law, and that bare power – both at a domestic and international level– is resisted. Without a grounding in law rather than unbridled or unfettered power, the entire edifice and basis of liberal democracies, are threatened.
The President’s orders and memoranda do not just have local consequences, as the attempt to insist on demanding that Mexico pays for a wall to be built by the US on the border between the two countries. In the international sphere, the rule of law demands the prevention and removal of threats to peace, the suppression of acts of aggression and the peaceful solution of conflicts, as established in article 1(1) of the Charter of United Nations, and not an escalation.