On 27 January 2017, US President Donald Trump has issued an executive order entitled 'Protecting the Nation from Foreign Terrorist Entry into the United States'.

On 30 January 2017, the acting Attorney General at the time refused to defend it in court because it was unconstitutional or otherwise illegal: [news article].

On what basis(es) might this executive order be illegal?


2 Answers 2


A few possible reasons it could be illegal (on an issue spotting basis, not a careful analysis of each possible reason):

  • The EO is intended to discriminate on the basis of religion and in fact does so in violation of the 1st Amendment to the United States Constitution.

  • The EO is intended to unlawfully discriminate based upon race or ethnicity in violation of U.S. statutes or the 14th Amendment.

  • The EO was adopted without observing the notice and hearing requirements of the Administrative Procedure Act.

  • The EO took effect prematurely because it was not duly published in the Federal Register for the time period required by law, or was otherwise insufficiently promulgated.

  • The EO repeals other regulations currently in force in violation of the Administrative Procedures Act.

  • The EO improperly disturbs the vested, albeit limited, rights of existing visa holders (or visa applicants) without due process of law, and/or in violation of unenumerated 10th Amendment rights.

  • Refugee visa applicants under an already adopted regulation are entitled to an individualized consideration of their application as a matter of due process and the EO amounts to an ex post facto law as applied to people already in the application process under that regulation.

  • The EO improperly deprives people who purchased non-refundable plane tickets in reasonable reliance of their visa rights which were not revocable under any law in place at the time those tickets were purchased of a property right in those plane tickets without compensation or due process of law under the 5th Amendment.

  • The EO is void for vagueness as the ambiguities in its drafting makes it impossible to determine who is and is not affected by the EO and in what manner.

  • There is a conflict in the immigration statutes between statutory provisions and treaty obligations related to refugees, and the regulation implementing a particular section of the immigration law's grant of regulatory authority, and the refugee protections must prevail.

  • A person claiming to be a refugee has a due process right to individualized consideration of their circumstances, either by statute, by treaty, or under the constitution, which the EO does not respect.

  • The treatment of dual citizens under the EO either is contrary to statutory immigration law or to a treaty or to the U.S. Constitution and customary international law.

  • The EO violates one or more treaties between affected countries and the United States regarding immigration.

  • The scope and terms of the EO exceed the authority granted to the President by the section of the immigration statutes relied upon for authority to pass the EO.

  • The administration failed to articulate a rational basis for distinguishing between nations included in the ban and nations not included in support of the EO as required by the Administrative Procedures Act.

  • There is no rational basis for distinguishing between nations included in the ban and nations not included as required by the U.S. Constitution (a much weaker test since it allows for post hoc rationalizations).

  • Authority to implement the relevant section of the immigration law is vested in one or more officials at the United States Department of State, rather than the President directly, and none of those officials approved the EO.

  • The military interpreters and their families may have a contract with the U.S. government as part of their employment that gives them a right to a visa, in which case the EO would be a law impairing contracts in violation of the U.S. Constitution, as applied to them.

  • Some of the immigrants may need to accompany U.S. citizen children in order for the children to exercise the childrens' rights to enter the country and as applied the EO may violate the U.S. citizen childrens' rights.

  • The CBP may be incorrectly interpreting the EO (which even the administration is not clear about) and therefore violating the law as applied because the EO does not actually authorize their action or because the way that they interpreted the EO was an abuse of their discretion.

  • The manner in which the EO was implemented (e.g. long periods of time in handcuffs for civilians not accused of any crime and with no ability to foresee that they would be denied entry, separating young children from parents, etc.) may have been an unreasonable seizure as applied, even if detention per se was authorized. The 4th Amendment requires that searches and seizures be reasonable in the manner that they are carried out even if the search or seizure is itself authorized by law.

UPDATE February 2, 2017: A federal judge in California has found that at least some of these reasons have merit and has stayed the EO and set an expedited hearing and briefing schedule on whether the injunction against the EO should remain in force.

UPDATE AND EPILOGUE June 28, 2018: The final version of the ban was ultimately upheld by the U.S. Supreme Court in the case of Trump v. Hawaii on June 26, 2018 in a 5-4 decision. Litigation of the version of the ban in the OP was dismissed as moot when it was withdrawn and replaced with a similar but newer version of the EO. The four justices in the dissent rely on the first reason given, as did lower courts in the case and in parallel litigation. A core distinction between the majority and the dissent is the weight given by statements made by President Trump about the policy, and how much deference to give to the government's reasons for the policy offered up in court. Justice Neil Gorsuch, who cast a deciding vote in the case, took office April 10, 2017, after this answer and the first update to this answer were written.

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  • 27
    @OrangeDog All of the provisions I mentioned of the U.S. Constitution apply to "persons" and not to citizens or residents of the United States. There are provisions of the U.S. Constitution such as the privileges and immunities clause that apply only to U.S. citizens, but the ones are cite are not among them.
    – ohwilleke
    Commented Jan 31, 2017 at 17:09
  • 33
    Yes, it does. The U.S. Constitution is not limited in application to U.S. soil. It is a governing document that governs the conduct of the affairs of the United States. Indeed, some provisions of the U.S. Constitution were expressly adopted for the benefit of non-citizen, non-resident creditors of U.S. persons located outside the United States.
    – ohwilleke
    Commented Jan 31, 2017 at 17:17
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    @reirab Obvious, I don't have a full set of facts and haven't examined the legal arguments under each bullet point and evaluated them in detail. If I were bringing a lawsuit myself, I'd analyze each with the best facts available and then pick the best ones. This is what "issue spotting" means.
    – ohwilleke
    Commented Jan 31, 2017 at 19:35
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    Based upon news reports interviewing Yates after she was fired it appears that the first two reasons were, in fact, the primary reasons that the acting attorney general of the United States (who was tapped by the Trump transition team before she was fired) felt that the EO was not defensible. When there is evidence of an actual improper intent for taking official action, the legal standard for striking it down as discriminatory or violating the establishment clause is much lower than when intent can only be inferred, and the administration's public statements showed improper intent.
    – ohwilleke
    Commented Feb 1, 2017 at 16:32

Rather than focus on the particular Executive Order, I will consider the general grounds on which an XO may be unlawful.

Federal jurisdiction

First, it must deal with matters that are properly within the power of the Federal government. An XO that deals with matters that properly belong to individual states would be unlawful. This applies to all lawmaking powers of the US government, not just XOs.

Legal source of Power

In theory, the three arms of government have the following roles:

  • The legislature (Congress) makes laws
  • The executive (President and Cabinet) administers laws
  • The judiciary (Courts) resolve disputes about laws.

In practice, things aren't that clear cut:

  • The legislature also administers laws (by deciding how to administer its own operations etc.) and decides disputes (through impeachment processes etc.)
  • The executive makes laws (by promulgating regulations and XOs etc.) and decides disputes (in administrative tribunals etc.)
  • The judiciary makes laws (by interpreting what the laws mean) and administers laws (by deciding how to administer its own operations etc.)

Getting back to XOs, the President must have a legal basis for exercising this power. This can come from:

  • A specific grant of power in the Constitution (there are surprisingly few of these)
  • A referral of power from Congress, that is Congress has passed a law which delegates the decision to the President. Note that a law that delegates the decision to, say, the Secretary of State, is not a power delegated to the President and would not serve as a basis for a legal XO from the President even though the SoS serves at the President's pleasure.
  • A basis that falls to the Chief Executive (President) from common law. That is, something that flows to the head of state from the original English law upon which US law is based (as modified and interpreted by judges) - something Congress could make a law about but hasn't. This is dangerous territory for a President as a judicial decision could mean that the President does not in fact have the power they think they do - that power lies with someone else.


The content of an XO must stay within the boundaries of the legal source of power, basically, it cannot go against any pre-existing law. If congress or the courts have decided that the law is X, an XO cannot say that it is Y. An XO can, however, change the law made by a previous XO by the same or another President, just as Congress can repeal or amend legislation and the courts can go against judgments that they previously made (at at the same or higher level of the court hierarchy).

  • 1
    Re: "the courts can go against judgments that they previously made (at at the same or higher level of the court hierarchy)": Oddly enough, this is not always true. Courts of Appeals panels, for example, are not allowed to overturn their own precedents.
    – ruakh
    Commented Feb 2, 2017 at 1:33

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