5 Questions: Law Prof. David Pozen on Executive Orders, Potential for Constitutional Crisis

February 10, 2017
David Pozen

David Pozen, a noted scholar of constitutional law at Columbia Law School, joined the faculty in 2012, after working for Harold Hongju Koh, the State Department’s legal adviser, and clerking for U.S. Supreme Court Justice John Paul Stevens and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit. From 2007-2008, just after completing law school, he served as special assistant to Senator Edward M. Kennedy on the Senate Judiciary Committee.

At a recent forum on immigration sponsored by the Office of University Life, Pozen spoke and answered questions about President Donald Trump’s executive order temporarily barring immigrants and refugees from seven Muslim-majority nations, acknowledging that he would “editorialize a bit.” Columbia News followed up with Pozen while the Ninth Circuit Court of Appeals was considering whether to reinstate the travel ban, which the court declined to do Thursday evening.

"The Ninth Circuit's ruling is not the final word on the legality of President Trump's executive order, and leaves important issues undecided, but nonetheless it is a major milestone in the campaign against the travel ban," Pozen said after the ruling was announced.

Q. What is an executive order?

A. There is no official definition of "executive order" in American law. But generally speaking, an executive order is a written directive from the president to federal government agencies and their employees. Recent presidents have issued dozens of executive orders per year, on an enormous range of topics. When authorized by a statute, executive orders can have the force and effect of law.

Q. Why do presidents issue executive orders?

A. Presidents use executive orders (as well as proclamations, memoranda, and the like) to set policy and manage the bureaucracy. Some of them address fairly mundane subjects. Last winter, Executive Order 13713 announced that agencies would close early the day before the upcoming Christmas. Others initiate important policy changes. One of President Obama's very first executive orders, for instance, established new guidelines for interrogating detainees in armed conflicts.

Q. Are there limits on this presidential power? Can Congress do anything in response to executive orders?

A. The standard view is that, except in rare situations where the president has exclusive constitutional authority over a matter, executive orders must be consistent with the statutes Congress has enacted. They can't be used to rewrite the law. Executive orders also must abide by the Constitution's guarantees of individual rights.

If members of Congress are concerned that an executive order goes too far, they can conduct hearings and investigations, introduce limiting legislation, delay the president's nominations, threaten to withhold funds, and more. Congress has no shortage of constitutional tools with which to push back. In practice, however, party loyalties and collective action problems often get in the way.

Q. Why do you think President Trump’s executive order on refugees and visas has proven so controversial in the legal community? What are the grounds for challenging it?

A. As a matter of policy, many of us believe the order is cruel, grounded in prejudice, and likely to harm rather than help national security. As a matter of law, many believe the order may run afoul of statutes such as the Immigration and Nationality Act, which forbids discrimination against immigrants on the basis of national origin, or constitutional provisions such as the Establishment Clause, which forbids the government from favoring one religion over another; the Due Process Clause, which forbids arbitrary deprivations of life, liberty, or property; and the Equal Protection Clause, which forbids certain forms of unequal treatment. Many also believe the order was put together in an irregular and slapdash manner, without proper vetting or notice.

Each of these points requires elaboration. But in short, the executive order managed to be unjust, unwise, unprofessional, and very possibly unlawful all at the same time. Whatever one's views on immigration, this is, to say the least, not a proud episode in the history of executive orders.

Q. At the recent forum on immigration, you referred to the possibility of a constitutional crisis over this executive order. What did you mean?

A. Right now, especially after the Ninth Circuit ruling, it looks like the executive order may be struck down by the courts, at least in part. Although this is not a slam-dunk by any means, a variety of plausible legal claims have been raised against it. And both the design of the order and statements made by President Trump and his surrogates about a "Muslim ban" undermine the notion that it deserves deference on national security or foreign affairs grounds.

This in itself would not amount to a constitutional crisis: the courts have invalidated many executive actions before. What would amount to a constitutional crisis is if executive branch officials start openly and systematically defying the judiciary. In recent days, there have been a number of reports of Customs and Border Protection agents failing to follow judicial orders. It is unclear exactly how much of this is happening or why. My hope and hunch is that these reports will soon fade, and the executive branch will ultimately comply with the courts' rulings.

That said, some of President Trump's recent tweets almost seem to be baiting the courts to strike down the travel ban. Should a terrorist attack on U.S. soil then occur, he has signaled that he will look to place the blame on them — thus taking his confrontation with the judiciary, and the threat to judicial independence, to a whole other level. Whatever happens with the travel ban, the possibility of a constitutional crisis will not go away.

—By Georgette Jasen