Trump has unveiled a large volume of Presidential Executive Orders that exist in a legal twilight zone
The principle of “executive order” refers to presidential orders intended to bind executive government officers or bind the public at large in order to comply with a president’s directive. Executive orders (EOs) effectively have the force of law.
Filing and publishing an EO is an irregular method of making a law. The creation of an EO by a president differs from the democratic process of creating a law, and for that matter, from the creation of administrative rules by a federal agency.
A law or statute is established by a legislative body, the Congress. The process includes speech and debate, legislative compromise, public hearings, and often expert testimony. None of this process need take place before the establishment of an EO.
The authority for EOs is not found directly in any statutes or in the Constitution, but as a legal mechanism, it must be legally supportable by these two sources. EOs exist in a legal twilight zone. The large volume of EOs issued so far this year is a relatively new phenomenon in U.S. history.
The creation of an EO is what I call “the use of powers by a president which are often not clearly expressed in existing law, but which may withstand legal challenges nonetheless.” The Supreme Court has suggested that EOs might even obtain the force of law based on Congress’s tacit acquiescence if the orders do not conflict with statutory and constitutional limits. Yet the use of the EO can be challenged, as we shall see.
Not all EOs are created equal. President Lincoln at the beginning of the Civil War ordered limited authority suspending the right of habeas corpus. Lincoln’s General Orders #141 (a precursor to an EO) directed, “Second. That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority …”
Thereafter in a controversial opinion Chief Justice Roger Taney ruled, “With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus. …”
Two years later, the issue was resolved when Congress exercised its constitutional power to grant the president the right to suspend habeas corpus in certain circumstances.
Recent Trump EOs have targeted five or so private US law firms by name and declared the law firms seeming enemies of the state. The EOs point the presidential finger at specific groups and names them. I have not seen this use of EOs in my adult lifetime.
The EOs have the aspect of Rome’s pre-civil war proscriptions against citizens more than an elected leader’s efforts to advance the administration of justice. The EOs issued against the firms will no doubt reduce firm business from current and prospective clients unless the firms compromise with the administration or perhaps challenge the EOs in court.
The president has lost sight of the principle that “Any deprivation or suspension . . . for past conduct is punishment. . . . Punishment not being, therefore, restricted, as contended by counsel, to the deprivation of life, liberty, or property, but also embracing deprivation or suspension of political or civil rights” — Cummings v. Missouri, 71 U.S. 4 Wall. 277 277 (1867)
Consider one such EO. On March 27, Executive Order 14250 was entered against the law firm Wilmer (WilmerHale). Certain of the firm’s cases and clients have drawn the ire of President Trump. And the firm’s affiliation with former Special Counsel Robert S. Mueller III also attracted the president’s displeasure.
Section 1 of the EO provided the basis for the EO. The section states that it was issued because of “conduct detrimental to critical American interests.” The EO does not define what the critical American interests are. The EO does not suggest or describe whether the law firm may have violated ethical standards in dealing with the federal government. The EO does not suggest or describe whether the law firm may have engaged in illegal activities. The EO does not suggest or describe whether the law firm may have engaged in fraudulent activities.
I am aware of no statute or administrative rule which discusses the phrase “critical American interests.” The “critical American interests” are not defined except perhaps through the personal critical interest of the president.
Section 2 of EO directs the attorney general to “suspend any active security clearances held by individuals at WilmerHale, pending a review of whether such clearances are consistent with the national interest,” and directed the “heads of agencies” to “expeditiously cease” providing any information related to “Government goods, property, material, and services, including sensitive compartmented information facilities.”
The third section requires “Government contractors to disclose any business they do with WilmerHale and whether that business is related to the subject of the Government contract,” and requires the “heads of agencies” to “take appropriate steps to terminate any contract, to the maximum extent permitted by applicable law.” The last EO sanction directs “heads of agencies” to “limit official access from Federal Government buildings to employees of WilmerHale” and to limit “government employees acting in their official capacity from engaging with WilmerHale employees.”
The ruling of U.S. District Court Senior Judge Richard Leon, a George W. Bush appointee, was staggering. The judge found that the threat of the EO’s sanctions would cause clients to strongly reconsider their engagements with the firm. The judge ruled the EO constitutes a staggering punishment for the firm’s constitutionally protected speech and is intended to impede the firm’s ability to effectively represent its clients.
Judge Leon determined the EO effectively prohibited WilmerHale attorneys from entering federal courthouses and pressured the firm’s clients that may hold federal contracts to terminate their current and future relationships with the firm. The judge detailed severe economic consequences stemming from the EO’s “retaliatory action.”
Additionally, Leon found that the no-trespassing courthouse sanction is “devastating to a law firm which appeared in federal court over 340 times in the last year. The judge concluded that WilmerHale has shown that it will suffer irreparable injury absent an injunction. The decision stated that WilmerHale has shown that the Trump EO violates the firm’s First, Fifth, and Sixth Amendment rights, as well as its clients’ First and Sixth Amendment rights.
The judge held that the balance of the equities and public interest support issuing a permanent injunction against enforcement of the EO.
Version 2.0 of presidential executive orders will likely continue, and continue without the stigma of compliance with the American Constitution.
David Ganje is an attorney who practices natural resources, environmental and commercial law. The website is lexenergy.net.
Photo: public domain, wikimedia commons
The South Dakota Standard is offered freely and is supported by our readers. We have no political or commercial sponsorship. If you'd like to help us continue our mission to advance independent political and social commentary, you can do so by clicking on the "Donate" button that's on the sidebar to your right.
