Trump can’t just overturn half a century of policy with order

On Oct. 3, 1965, President Lyndon B. Johnson signed the bill that abolished discrimination from our immigration laws. Commemorating the occasion on Liberty Island, at the foot of the statue that welcomes huddled masses yearning to breathe free, LBJ also spoke of U.S. soldiers huddled in the jungles of Vietnam, breathing their last. "Men there are dying," he said, "men named Fernandez and Zajac and Zelinko and Mariano and McCormick. Neither the enemy who killed them nor the people whose independence they have fought to save ever asked them where they or their parents came from. They were all Americans. It was for free men and for America that they gave their all, they gave their lives and selves. By eliminating that same question as a test for immigration the Congress proves ourselves worthy of those men and worthy of our own traditions as a Nation." Remarks at the Signing of the Immigration Bill, 2 Pub. Papers 1037, 1039 (Oct. 3, 1965). But will we remain worthy? That is the question posed by Khizr Khan as a friend of the U.S. Supreme Court in the "Muslim ban" case, Trump v. Hawaii, 17-965.

Khan emigrated from Pakistan, and has the fierce devotion to our Constitution of someone who -- like our Founders themselves -- previously "lived under a form of government that permitted arbitrary governmental acts to go unchecked." INS v. Chadha, 462 U.S. 919, 959 (1983). Khan's son, Humayun Khan, had that same devotion to the Constitution, and served as a captain in the U.S. Army in Iraq. As a Muslim, Captain Khan was particularly able to foster warm relationships with local Iraqis. He started a program to hire locals to work on the base as a way of trying to improve relations between the soldiers and the town. And he was determined to break the cycle of violence by preventing unnecessary deaths and injuries at the gates, where several innocent Iraqi drivers had been wounded or killed because they failed to heed or did not understand the soldiers' instructions. The terrible irony is that Captain Khan's remarkable success in winning local Iraqi hearts and minds may have been what provoked the suicide bombing that took his life.

On the morning of June 8, 2004, Captain Khan was supervising a checkpoint outside of Camp Warhorse. As a taxi approached the gates, Captain Khan could have ordered his soldiers to put a .50 caliber shell through the windshield. But perhaps the driver, like others before, was simply confused. Ordering his soldiers to hit the dirt, Captain Khan moved forward to stop the taxi before it could reach the gates or the mess hall beyond, where hundreds of soldiers were eating breakfast. Captain Khan was killed when the suicide bombers in the taxi detonated their explosives. He was posthumously awarded a Bronze Star and a Purple Heart.

In 2016, Khizr Khan spoke out against then-candidate Donald Trump's proposed "Muslim ban." Trump responded by disparaging the Khans and their plea that he should respect the Constitution and those, like Captain Khan, who have died defending it. And, as president, Trump has repeatedly sought to implement his promised "Muslim ban," culminating in his proclamation of Sept. 24, 2017, now at issue before the Supreme Court.

Even if the president had worked through Congress, as the Constitution requires, to implement his radical changes to our immigration laws, not even Congress may make a law that sends a message to Muslims "that they are outsiders, not full members of the political community." Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309 (2000). Yet that is precisely the message of the President's several attempts to impose a "Muslim ban," including the current proclamation. Although President Trump's lawyers have, as he puts it, "watered down" his original Muslim ban, the taint of discrimination has not been washed away. As Supreme Court Justice Stephen J. Field held, riding circuit in California when its lawmakers tried to conceal the discriminatory nature of a law by couching it in facially neutral language, "we cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men." Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879).

And even if the Supreme Court blinds itself to the undeniably discriminatory origins of the current proclamation, the Constitution does not allow the president to make unilateral changes to our immigration laws. See, e.g., Chadha, 462 U.S. at 959. On the contrary, the principle "that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government." Galvan v. Press, 347 U.S. 522, 531 (1954). Yet the president's proclamation "does not direct that a congressional policy be executed in a manner prescribed by Congress -- it directs that a presidential policy be executed in a manner prescribed by the president," violating the separation of powers. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952).

More than 50 years ago, Congress firmly rejected the notion that putting America "first" means excluding "persons of different cultures." See S. Rep. No. 89-748, at 3347-48 (1965). As LBJ said at the time, such prejudice is "un-American in the highest sense," and unworthy of the sacrifice of soldiers like Captain Khan. Remarks at the Signing of the Immigration Bill, 2 Pub. Papers 1037, 1038 (Oct. 3, 1965). The United States has "flourished because it was fed from so many sources -- because it was nourished by so many cultures and traditions and peoples." Id. at 1039. President Trump cannot overturn half a century of congressional policy -- much less the Constitution itself -- with the mere stroke of his pen.