JURIST Guest Columnist Andrew Wright of the Savannah Law School discusses President Trump’s newly revised travel ban…

On September 24th, President Donald Trump issued a presidential proclamation revising the entry suspensions and restrictions outlined in Executive Order 13780, issued March 6, 2017. The March 6 E.O. replaced the original chaos-inducing travel ban instituted by Executive Order 13769 on January 27, 2017. For ease of reference, I refer to these three presidential executive actions sequentially as Travel Ban 1.0 (January 27), Travel Ban 2.0 (March 6), and Travel Ban 3.0 (September 24).

JURIST reported on the scope of the new ban’s coverage, and Marty Lederman provided helpful additional analysis of the Travel Ban 3.0 on Just Security. In operative effect, Travel Ban 3.0 suspended immigration of individuals from Chad and North Korea, in addition to those from Iran, Libya, Somalia, and Yemen who were already covered by Travel Ban 2.0. It also suspends, to varying degrees, the entry of nonimmigrants from those countries, along with certain classes of Venezuelans. It also had the likely effect of mooting much of the pending federal litigation.

The president chose to shift from use of an executive order to a presidential proclamation as the platform for this policy pronouncement. While I cannot resolve the question as to the president’s motivation, I offer some basic contours of these different forms of presidential directives. Bottom line: the validity of the president’s travel ban policy will turn on its substance (and, I would argue, irrationality), not its delivery by means of executive order or presidential proclamation.

The Constitution’s enumerated government structure requires that all presidential directives must trace authority to an express constitutional grant of power, a presidential power implied by the Constitution, or a legislative enactment delegating authority to the president. A presidential directive can be controversial as a matter of process by nature of its expression of unilateral action by the president. However, they are more often controversial as a matter of substance: either by means of a contested authority asserted by the president or the president’s policy choice.

Neither the Constitution nor Congress created executive orders and other presidential directives. Rather, they are creatures of customary presidential practice. There are therefore no concrete, universally accepted definitions of each form of presidential directive. There is plenty of overlap, which often gives a president a choice among forms of directive for a given policy. There are some general distinctions that can be made based on recent presidential practices. Presidential directives can come in a number of forms, including executive orders, presidential memoranda, presidential proclamations, national security directives, or presidential signing statements. Here, I will address the general distinction between executive orders and presidential proclamations. More comprehensive treatments, albeit from the legislative branch perspective, may be found in a series of Congressional Research Service reports “Executive Orders and Proclamations” (See the 1999 report and 2014 report). One immediate similarity between them: the Federal Register Act requires that both executive orders and proclamations be published in the Federal Register.

Executive Orders

In 1957, the House Committee on Government Operations offered the most widely recognized definition of an executive order: “Executive orders are written documents denominated as such…[and] are generally directed to, and govern actions by, Government officials and agencies.” Executive orders tend to regulate the conduct of government officials and affect private individuals only indirectly. They tend to focus on management of the federal agencies of the Executive Branch.

Presidents have used executive orders to establish executive branch policy binding subordinate officials, to formulate policy in an area the President deems to have authority, to delegate executive authority to agencies, to direct agencies to establish regulations, to manage federal property, to reorganize federal agencies, and to supervise military organization. For example, President George Washington used an executive order to require executive department heads “to submit a ‘clear account'” of their departments’ operations. Similarly, President Barack Obama used Executive Order 13658 to establish a minimum wage for government contractors.

Executive orders that originate outside of the White House must go through an approval process run by the Office of Management and Budget (OMB), which is a component of the Executive Office of the President.

The travel ban executive orders originated inside the White House and were therefore exempt from the OMB formal process. President Trump used the Travel Ban 2.0 executive order direct subordinates (the Secretary of Homeland Security and Attorney General) to conduct a worldwide review of information and make recommendations the President to inform his judgment before that order expired. In that sense, while the Travel Ban 2.0 executive order certainly affected individual rights directly, it also largely directed subordinate executive officers to undertake duties.

Presidential Proclamations

In contrast, presidential proclamations more often affect the interests of private individuals and organizations than executive orders. Presidents use proclamations to grant pardons, declare holidays, make hortatory pronouncements, and recognize citizen achievements. For example, President Abraham Lincoln issued the Emancipation Proclamation on January 1, 1863, which declared that “all persons held as slaves” within the Confederacy “henceforward shall be free.”

Presidents have used proclamations to announce foreign policy. In addition, proclamations also may become the vehicle by which to make presidential findings required in order to trigger a conditional statutory authority. Presidents have also invoked emergency powers by means of proclamation.

President Trump’s Shift

The Travel Ban 3.0 proclamation is largely framed as announcements of policy (e.g., § 1(a) (“It is the policy of the United States…)” or § 1(c)(ii) (“The United States expects…”)). Some of its provisions reflect the President’s determinations following the recommendations he had previously mandated by Executive Order. See § 1(h)(ii) (“After reviewing the Secretary of Homeland Security’s report…I have determined”). In these purely procedural senses, the president’s policy is within the recent historical use of proclamation as a mode of presidential directive. However, the President could have also used an executive order again to achieve the same results. For example, the Travel Ban 2.0 executive order also declared U.S. policy. See Travel Ban 2.0 E.O. § 1(a) (“It is the policy of the United States…”). In any event, the legality of the president’s policy will be decided on substantive constitutional or statutory grounds rather than the typology of presidential directive.

Andy Wright is Associate Professor at Savannah Law School. He teaches constitutional law, criminal law, criminal procedure, presidential powers, and federal criminal law. He joined the law faculty after serving in the White House as Associate Counsel to President Barack Obama. Previously, Professor Wright worked in Congress conducting oversight of U.S. national security matters. Professor Wright began his legal career as Assistant Counsel to Vice President Al Gore in the Clinton White House. After Bush v. Gore, he served as General Counsel to the Office of the Former Vice President for legal matters related to winding up White House affairs.

Suggested citation:Andrew Wright, Executive Orders and Presidential Proclamations as Trump Travel Ban Vehicle, JURIST – Academic Commentary, September 29, 2017, http://jurist.org/forum/2017/09/Andrew-Wright-Trump-Travel-Ban.php