It’s been a very short time since the Trump Administration took office but this has not held back the concerns of civil society and the international community about the trajectory of the new government. Those in support of Trump have also shown a mammoth wave of patriotic backing on social media. I am however a firm believer in constitutional adjudication; that regardless of executive or legislative intentions, majority opinions nor emotive campaigns cannot be a substitute for a disciplined judiciary armed with a democratic constitution.

State of Washington v. Trump

I think to the Trump Administration, the blow delivered in the recent decision by the three federal judges in State of Washington v. Trump should simply be a flashback to the foundations that underpin good governance in any constitutional democracy. In January 2017, the U.S President issued an executive order that sought to protect the United States from possible foreign terrorist threats entering the country. Grounded in the noble attempt to preserve national security, the order would; suspend for 90 days the entry of foreigners from seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen); suspend for a 120 days the United States Refugee Admissions Program; and suspend indefinitely the entry of all Syrian refugees.

The decision in State of Washington v. Trump refused to block a previous decision by a lower court that suspended the order. In his usual ways, the President has already taken to social media (Twitter) to declare his intention to appeal the decision. If he goes ahead with the appeal, is he likely to succeed? From a constitutional perspective, I have a great deal of doubt on the possibility of succeeding in an appeal unless the executive revises its posture on the current matter and this is why:

Constitutional Supremacy

The arguments presented by the Trump Administration in the last round of legal proceedings revolved around trying to assert their dominance as the executive arm of government contesting that the President has “unreviewable authority to suspend the admission of any class of aliens” and further articulated that “the power to expel or exclude aliens is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control”. To start with, these statements seem not to take into account that the US Constitution in Article VI establishes itself as the supreme law of the land and anything contrary to the Constitution notwithstanding. Article VI further binds the judges, executive and the legislature to support the provisions and values of the Constitution. The Constitution then places gallant burden on the judiciary to resolve disputes relating to the law, therefore courts must declare state laws and even acts of other organs of state null and void when they are inconsistent with a provision of the Constitution. The power of the judiciary to nullify decisions extends to decisions made by the executive and as such an executive order, even if couched in national security concerns can still suffer the scrutiny of the judiciary if it goes against the values of the Constitution.

This concept of constitutional supremacy has already been tested in landmark cases such as Marbury v. Madison (1803) in which the court was able to squarely affirm its ability to review the conduct of other branches of government and Brown v. Board of Education (1954) in which the judiciary was able to rely on the constitutional provisions of equality to nullify the racial education doctrine of “separate but equal”.

Fairness and Religion?

The Executive order concerned in this debate crosses various rights that are contained in the Constitution. The recent judgement has affirmed that procedural fairness as a fundamental ingredient in due process before a traveller is restricted from travelling is not contained in the order, further the government failed to show why this right should not be afforded to persons whose presence in the United States is unlawful, temporary or permanent. The nature of law is such that an individual cannot be stripped of their liberties unless a fair process has been undertaken to justify the denial of their rights.

Another constitutionally enshrined right that this order fails to uphold is the right not to be discriminated against on the basis of religion. Though the order is “facially” neutral and does not directly target Muslims, the majority of citizens from the states identified in the order are known to hold particular religious beliefs. The Trump Administration then made it easier for the applicants in the case to draw a correlation between the executive order and the various statements by the President in which he seems to associate terrorism with other religions. This argument was considered positively by the federal judges. The effect of such inferences is such that the integrity of the order, though aimed at protecting national security, becomes tainted with the blood of religious inequality.

Once again, equality being a constitutional right afforded to all, the Trump Administration will have to make a compelling case on appeal to justify why inequality should prevail on the basis of classified intelligence that has not been presented before the court. 

In a nutshell

It is going to be legally impossible to push ahead with the idea that executive orders or the conduct of the executive arm of government cannot be reviewed by the judiciary in the face of constitutional infringements unless the Trump Administration amends the Constitution (which is a near impossible move in the current climate). The Trump administration will also have to make a legally gripping argument in order to convince the judiciary to waive a series of constitutional rights in favour of national security.

Dr Ilyayambwa Mwanawina