Travel Ban Aftermath: A Challenge to the Foreign Policy Monopoly?

In case you lived under a rock for the few weeks, the media was dominated by President Trump’s executive order banning citizens from 7 predominantly Muslim countries (Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen) from entering into the United States regardless of status. This was followed by an overruling by a Federal district judge in Seattle and the confirmation by the 9th Circuit Court of Appeals in San Francisco. While opponents of the travel ban celebrated the courts’ decision and move on to other battle lines against the administration, an interesting aberration in government precedent has creaked open that can disrupt the Executive Branch’s long enjoyment of dominating foreign and national security policy.

American foreign policy and national security against foreign threats falls, by and large, under the purview of the executive branch. While Congress certainly has influence on major decision making (i.e. declaring war, finalizing trade agreements, and/or approving funding for major executive decision making), they for the most part act as an oversight committee on foreign policy and leave the direction and day-to-day decision making of American foreign policy and national security to the president. However, even then, that oversight is, by and large, not controlled by major mechanisms of the U.S. Constitution.

The precedent for this lies in a 1936 Supreme Court decision United States v. Curtis-Wright Export Corp. (1936), which largely stands unchallenged since. In a 7-1 ruling, the court explicitly defined which branch of government would by and large dictate foreign policy where it was once vague in the Constitution. Howard Zinn, in his book Disobedience and Democracy: Nine Fallacies on Law and Order (p. 62-63), expands on the decision and analyzes it as doing two major things:

It declares that in foreign policy the government is not as limited by the Constitution as in domestic policy; it assigns enormous power to the President in the making of foreign policy…

Zinn then quotes the court’s majority opinion:

‘…The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs…’

And Zinn concludes:

The court spoke of ‘the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress.’ And when it adds that this power ‘of course, like every other governmental power, must be exercised in subordination to the application provisions of the Constitution[,]’ we must remember that the Court had just declared that in foreign affairs the government was not subject to the restrictions of the Constitution as in domestic affairs!

Since then, that decision has become a defining moment in legal precedent for allowing egregious violations of constitutional rights such as the internment of Japanese-Americans and the seizure of private property and businesses during “times of crisis” and/or war.  Therefore, the drumming up of fear and imminent threat has become the modus operendi of any and all president’s that have desired to push their policy and agenda with minimum legal opposition. In other words, it is like a first step in a Guide to Legally Establish Draconian/Dictatorial Laws in your Democracy flowchart.

As such, it should come to no surprise that the campaign rhetoric and policies coming out of the Trump administration fits the tried and true pattern. They were audacious enough to make such a broad and sweeping executive order. In fact, I would even speculate that they had their bases covered on being allowed to do so legally.

However, this time, with both Washington State and Minnesota suing the federal government on the grounds of economic damage and injury caused by the order in conjunction with an constitutionality argument, Judge Robart broke away from precedent. Judge Robart asked for evidence to support the executive order, which the Federal government could not supply. Instead, the Federal government challenged the authority of the Judicial Branch of the United States in reviewing decisions made by the Executive branch. Judge Robart quickly rebuffed such an argument.

The judge then concluded:

The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches.That’s the work of the legislative and executive branches, while it’s the work of the judiciary to ensure laws and executive orders comport with the Constitution. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.

While the legal battle over the travel ban specifically is not close to over and will continue to work its way through the legal process up to the Supreme Court, there is a different subtext that can possibly play out where a possible avenue for challenging the Executive Branch’s near monopoly on determining foreign policy and national security can be formed. For the first time in a while, a case is being presented to the court that individual states are able to challenge a near century long precedent in American governance and legal ruling that gives the President sole power to dictate foreign policy. (The irony being that such a challenge started with the Republicans challenging Obama’s executive authority in a previous court case.)
It would be hyperbolic to claim that even the most favorable decision would reign in the President’s ability to dictate foreign policy, but it would creak open the door that was once shackled shut. That small creak could grow wider if individual states leverage the argument of economic damage and injury with evidence of US foreign policy causing direct economic damage that is amplified by globalization. It might be a bit of a long shot and likely would require juxtaposing an unconstitutionality argument, but the fact that a U.S. state is able to successfully sue the Executive Branch on a foreign policy and security decision (though it’s blurred as being also a domestic issue since it deals with immigration) might be able to pave the way of reigning in the monopoly on foreign affairs.
Another interesting detail is the close relationships that businesses and universities from these states (that make up the economic back bone of the state) worked closely with their local government to establish a strong legal case. The companies that overwhelmingly opposed the ban were from industrial sectors that rely on highly skilled and educated individuals, which have an over-represented Asian workforce that are directly affected by the ban (e.g. tech). While issues of diversity in the workforce (even in high-tech) is a problem and should be addressed, it should be noted that this may be an emerging area of influence in dictating policy, especially in booming sectors like tech and engineering that are starting to become more affluent in politics.
These increasing diversity factors (using a high-skill labor lens only, for now) can further solidify that bridge of foreign decision making to domestic repercussion streamline. As such, this may further embolden individual municipalities and states to keep challenging the President’s foreign policy that disrupts constitutional guarantees and could continue to chip away at his ability to roll out his policy.
If he continues to be disruptive, he could not only lose his own ability to establish his foreign policy agenda without aberration, but also for other presidents to come.
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