The Executive Power of Political Emergency: The Travel Ban

Abstract

As one of his first actions in office, President Trump chose to ban nationals of seven Muslim-majority countries from entering the United States. The announcement and implementation of this “Travel Ban” were chaotic, fast-paced, and out of the ordinary. The first version of the Travel Ban quickly was replaced with a second version in an attempt to ameliorate the legal and policy weaknesses of the first version. The second version still was deeply flawed and spawned much litigation. Through a third version, the Trump Administration created a ban ultimately upheld by a Supreme Court majority willing to ignore pedigree in favor of an agency-provided facially neutral justification.

This symposium contribution will describe the announcement and implementation of the Travel Ban, including all three versions. From there, it will explore how the Travel Ban resulted from a manufactured political emergency. Because of the way the Trump Administration portrayed immigration during the presidential campaign, the executive created a political emergency to take action against an artificial threat. The bungled implementation of the Travel Ban shows how the impetus for the ban was more political emergency than anything else. The initial announcement and implementation of the ban was political theater that took little regard for bureaucratic expertise on policy formation and implementation. The evolving ban in all its various forms represents an attempt to dilute the fingerprints of political emergency to cloak the ban in the garb of a more reasoned policy choice. That the Supreme Court ultimately upheld the ban based on the
afterthought justification provided by agency experts raises important questions about the role of agencies in concealing discriminatory intent.

Keywords: immigration, Trump, travel ban, Due Process Clause, Establishment Clause, border, refugee, Immigration and Nationality Act

JEL Classification: K00, K19, K33, K37, K39