President Trump’s Immigration ban: Unlawful Executive Orders and Bureaucratic Resistance

 

As Alex Aleinikoff stated in this forum recently, there will be much to report about Donald Trump’s Executive Orders relating to immigration enforcement and refugees in coming months.

Given that the President recently issued an amended immigration order on 6 March, it is timely to reflect not only upon the legality of the order itself, but also upon the broader question of the role of the bureaucracy in carrying out any new order.

As readers will know, President Trump’s executive immigration order issued in January attracted protest and litigation. In States of Washington and Minnesota v. Trump the U.S. District Court for the Western District of Washington granted a temporary injunction against the operation of the order, and the 9th Circuit refused to stay that injunction. Although the President has now rescinded that order, litigation on this matter looks set to continue with the Legal Director of the American Civil Liberties Union (ACLU) indicating that it will challenge the revised order in the courts.

This situation raises the question as to what duty is placed on United States officials to obey, or more controversially disobey this new immigration ban order?

This is relevant as U.S. Attorney-General Sally Yates was fired by the Trump administration  after she questioned the legality of the January executive order and after she instructed her Justice Department not to enforce it. In justifying her decisions, former AG Yates said:

… I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful. Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.

The actions taken by Yates and the response to it highlight the dilemma faced by public officials who are morally opposed to certain laws or policies or who form the opinion that they are unlawful (prior to any litigation adjudicating lawfulness). Either they disobey the order and face likely reprimand, or they do as instructed against their own moral judgment on the matter.

At a time when immigration is becoming increasingly politicised and pressure is being placed upon departmental officials to act against either their own conscience or their legal understanding of their role as a public official, it is pertinent to ask: what right does a public official have to disobey or depart from a law? 

Civil disobedience by officials – Rule Departure

In talking about resistance by officials in the context of the US immigration ban, we make a distinction between personal civil disobedience and that of members of a governmental administration (on the basis that the latter hold a duty different to that of a member of the general populace). We utilise the label ‘rule departure’ to describe the refusal of an official to enforce a law – a concept discussed by Kadish and Kadish and others. A common example of ‘rule departure’ given by scholars is the decision of a jury to acquit a person they in fact believe is guilty.

In order to appreciate the moral underpinnings of rule departure, we must first understand its relationship with the doctrine of civil disobedience.

The right of an individual to disobey unjust laws has long been considered an essential one. Building on the idea that everyone has a right of conscience, Rawls outlined several conditions that must be met before civil disobedience becomes justified. Among them, the law in question must amount to a clear and substantial injustice (such as a violation of equal liberty or opportunity), and disobedience must be undertaken only as a last resort. In other words, it is not enough that an individual dislikes a law or finds it morally objectionable: they must demonstrate an actual injustice and exhaust all reasonable legal avenues to change it before they may engage in disobedience.

The concept of ‘rule departure’ also has a similar moral foundation to civil disobedience. Though duty-bound to serve both their government and their people, public officials as individuals still have a right to freedom of conscience, and should not be forced to participate in a law to which they are morally opposed. In principle, this means an official should always have the option of ‘conscientiously objecting’ to a law without facing any punishment for doing so, at least provided their objection is sincere.

A tale of three duties

Compared to civil disobedience by private citizens, rule departure by public officials tends to be a much thornier issue given the conflict of duties involved. We can distil the obligations of a public official into three paramount duties: one is a duty as an employee to obey and carry out the orders of the government; another is a duty to serve the public and, where provided, act in its best interest; and the last is a duty to act conscientiously, which may encompass a further duty to act upon and defend one’s conscience.

The balance between these duties is vague and often uneasy. Much of the criticism levelled against former AG Yates, for instance, came from conservative commentators who felt she had a responsibility to stand with her administration rather than undermine it. Moreover, they argued that refusing to enforce the order outright was disruptive; instead, she should have followed the procedure for substantive review or simply left it for the courts to decide.

Politics aside, the controversy surrounding Yates suggests a need to clarify the justifying conditions for rule departure so as to preserve the balance between duties as far as possible. After all, if conscientious objection exists as a general right for public officials, then the duty of conscience becomes somewhat elevated over the duties of service. How do we reconcile the conscientious intentions of rule departure with the disorder that will arise when an official refuses to carry out a law?

One way to resolve this is to apply an ‘aims and values’ test, such as the one proposed by Greenawalt. Namely, the act of conscientious departure must be consistent with the overall duties and values of the office involved. This not only makes the requirements for rule departure decidedly more rigorous, but also allows for a more useful assessment of individual justifications. For example, an attorney-general who refuses to enforce an order s/he feels is unlawful is arguably acting in support of the rule of law and in accordance with her role as the government’s legal counsel. By contrast, a clerk who refuses to sign off on same-sex marriage licences due to her religious beliefs contravenes multiple values fundamental to her office, including the equality of persons and the secularity of government. Put simply: if an official departs from a particular law to defend or uphold their office’s institutional aims and values, then they may well just be doing their job.

Another question which muddies this area is whether Yates’ refusal to support the immigration ban is in fact one of rule departure given that she appeared to be of the opinion that the law was unconstitutional (a finding upheld by several courts). That is, some may argue that this is quite different from a scenario where a jury acquits a person they believe to be guilty. The two situations are slightly different in that Yates formed a legal opinion that the ban was unlawful (rather than simply defying the ban in the service of a higher moral purpose). However, we would still characterise this situation as one of ‘rule departure’. Although there were doubts expressed about the constitutionality of the original ban, there was in fact a legal rule in force (which officials were required to enforce until such time that it was suspended) and therefore there was a departure from a ‘rule’.

Conclusion

The principal justification for civil disobedience is that the law in question is unjust. However, as we have seen, this is not entirely adequate when it comes to rule departure. In addition to its susceptibility to politicisation, the test on its own does not consider the crucial interplay of duties that drives the actions of a public official. Instead, we may say that an official is justified in departing if they hold a sincere moral objection to the law and are acting consistently with the overall aims and values of their office.

Applying this test to the actions of Sally Yates, there is a clear argument to be made that she was justified in refusing to enforce the immigration ban given that she considered the ban was both unlawful and contravened her institutional obligation to ensure justice. Although the present Attorney-General Jeff Sessions has strongly endorsed the new immigration order, it remains to be seen whether other parts of the US Department of Justice or other agencies will enforce it. Possible bureaucratic resistance to President Trump’s executive order therefore remains a significant legal issue.

Michael Li is a Law Student at Monash University, Melbourne, Australia and Maria O’Sullivan is Senior Lecturer and a Deputy Director of the Castan Centre for Human Rights Law at Monash University.

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