Trump’s travel ban could have far- reaching consequences

Scholars say courts’ focus on intent could limit his successors

WASHINGTON President Trump’s new executive order sets up a court battle that could create a long- lasting precedent for presidential power — and not just on immigration law.

Trump rewrote his travel ban order Monday, hoping to fortify it against court challenges that have argued that it discriminates against Muslims. A key question now is: If the first order was discriminatory in its intent, can a rewrite of the order make that intent go away?

“This case about the president’s authority will undoubtedly be tremendously consequential for the scope of executive authority going forward,” said Richard Fallon, a Harvard law professor.

Trump’s executive order on Monday was a second attempt to ban people from select countries — all predominantly Muslim, with a history of harboring terrorists — from traveling to the United States. Unlike the first order signed in January and halted by the courts, the rewritten order drops Iraq from the list of countries and no longer gives preferences to religious minorities ( largely Christian) from those Muslim countries.

Fallon has studied how discriminatory intent by legislatures can render laws unconstitutional. Executive orders are different, but there’s one way in which proving a president’s intent is easier: He’s just one person.

If courts begin to question the president’s intent on executive orders, it could limit a future president’s power in unforeseen ways, legal scholars say.

Executive orders derive their authority either from the Constitution or a specific law passed by Congress. For his travel ban order, Trump has that authority under the Immigration and Naturalization Act.

“The way that Trump has framed all of this creates this swirling media black hole. He’s created a lot of confusion in how we talk about this,” said Abbe Gluck, a Yale law professor who has studied executive orders.

“The president has very broad power under the immigration law. That’s not the issue. The challenge to them is you can’t do what he wants to do because it’s unconstitutional. No one is saying the Immigration and Naturalization Act is illegal. It’s how you’re enforcing them,” she said.

“Maximum power does not mean absolute power,” Judge Leonie Brinkema of Virginia wrote last month in a case that challenged Trump’s executive order. “Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights.”

If Trump’s executive order is overturned, it could create a precedent that could make courts more willing to inquire about the intent of executive orders — something that could come back to haunt future presidents.