Written by Daliah Sklar, DRSI Law
Trump’s Tweets are not specific Orders, but rather personal sentiments- Trump’s Tweets and current implications of US immigration policy.
On 20 April 2020, US President Donald J. Trump tweeted that, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!” This, in response to the dramatic economic downturn the US economy has taken as a result of the current COVID-19 pandemic.
This is not the first time the President has made such an extreme foreign policy decision via his social media outlet. The most famous one until now is his “Travel Ban” from predominantly Muslim countries, the President proclaimed:
“That’s right, we need a travel ban for certain DANGEROUS countries, not some politically correct term that won’t help us protect people!”
Although Trump’s tweet did not make clear which immigration programmes might be affected, it does add to the field of uncertainty with regard to the current business and general health atmosphere, as well has his continued aggressive isolationist policies that he has been enacting during his tenure.
As for the legality of such issues and how they are perceived in the courts, this issue has become a proverbial legal hot potato between the Circuit courts and the United States Supreme Court.
With regard to defining an Executive Order, the US Federal Register defines Executive orders as “official documents, numbered consecutively, through which the President of the United States manages the operations of the Federal Government.”
When the issue was brought forward to the 9th Circuit Court, all three presiding judges declared, “The Executive cannot without assent of Congress supplant its statutory scheme with one stroke of a presidential pen,” while, during the Supreme Court’s Appeal in Trump v Hawaii, in its briefs, the government had argued that trying to determine Trump’s underlying motive for the policy was beyond the scope of the court’s duties. They specifically stated,“this Court’s precedent prohibits such ‘judicial psychoanalysis of a drafter’s heart of hearts,’”
While the Court did not seem to want to negate the accepted proceedings of the Legislative process, Chief Justice did claim in his closing statements, “the Proclamation is squarely within the scope of Presidential authority”. He later added: “Because there is persuasive evidence that the [policy] has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.”
Although the Circuit Courts have specifically argued that tweets are not specific Orders, but rather personal sentiments, Chief Justice Roberts contends that, “The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf,” thereby giving President Trump’s tweets legal standing, however, it should be added, that they need to give substance with respect to the issue at hand, as per Doe v Trump.
In Doe v. Trump, U.S. District Judge Colleen Kollar-Kotelly quotes the aforementioned series declared that, even though the President made three separate posts to complete his statement regarding transgender military service, the court viewed this as one cohesive statement in the opinion. The decision examined the specificity of the memorandum only and whether or not it consisted of the appropriate language to that of which is a recognized type of executive action, which it deemed it did not, as the judge deemed it incoherent and plain viewpoints of a personal manner.
NAT’L ARCHIVES -https://www.archives.gov/federal-register/executive-orders/about.html [https://perma.cc/W37R2NXG]
Another example of incoherence with regard to the legality of a tweet is when on November 21, 2017, a Seattle federal judge preceding on a similar case regarding transgender military service declared that “the prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation,” see Karnoski V Trump. 2017 WL 6311305
As for the current tweet, due to the issue there are no specifics, but rather a show of intent, one needs to wait for further clarification from the White House and the Department of Homeland Security.
Moreover, as can be concluded, the although Justice Roberts agrees that Trump’s ‘feed’ is perceived as the Executive’s mouthpiece, they should be considered more formal only once the proper documentation is issued by the White House in the aftermath of the Twitter posts, i.e. they should be regarded as a nominal preamble to the directive itself.
It should be made clear that Trump is anxious about the US financial economy and pushing his known policy to get back to work straight away, and let this not be made a Racist media frenzy, as the media and anti trump protesters would like to convince people.
Many countries including the United Kingdom and all of Europe have closed their Immigration Offices and no one in the world has tweeted that this is a Racist action but put it down to Social distancing and endangering the public in closed offices. European countries closed their borders on each other breaching Article 3(2) of the Treaty on European Union.
Freedom of Movement and residence for persons in the EU is the cornerstone of Union citizenship, established by the Treaty of Maastricht in 1992.
Freedom of movement is a human rights concept encompassed in the European Union permitting the right of individuals to travel from place to place within all 28 States of the EU and to leave the country and return to it.
In particular, no discrimination based on nationality is allowed.
Around 68,000 people cross the Swiss-Italian border every day for work. Right-wing protest movement Lega dei Ticinesi called for the closure of the Swiss border for people entering from Italy. Who called it a Racist policy when Italian citizens were turned away at their borders with Switzerland and who called it Discrimination when European countries border closures did not permit medical trade and products to pass through to their member states’ neighbours for medical aid? When asked how European countries were aiding their neighbours, Germany, Switzerland, Luxembourg and Austria have offered to accept intensive care patients hospitalized in France, particularly the Grand Est region which has been hard hit by the epidemic. In total, there have been over 120 offers to take in patients and everything possible is being done to transfer them quickly. That is 120 offers for dying people when 68000 people cross the tiny Swiss Italian border per day!
This is far more drastic outcry for breach of human rights and discrimination against nations and than an interim policy that the US President is contemplating. The American’s President has always made his overall policy and intention clear – America FIRST and it should not be different from any other countries current security fears should be worldwide.
© DRSI Law