Ob­scure clause lets Trump pro­tect his or­ders

USA TODAY US Edition - - FRONT PAGE - Gre­gory Korte

WASH­ING­TON – Pres­i­dent Trump is turn­ing to an ob­scure legal mech­a­nism in an at­tempt to pro­tect some of his most con­tro­ver­sial ex­ec­u­tive or­ders in case they’re struck down in court.

It’s called a sev­er­abil­ity clause, and less than a year into his pres­i­dency Trump is on pace to use it more than all of his pre­de­ces­sors com­bined.

Usu­ally found at the very bot­tom of ex­ec­u­tive or­ders and procla­ma­tions amid other boil­er­plate lan­guage, it acts as a built-in pres­sure re­lease valve. It in­structs courts to leave the rest of the or­der in­tact even if they find one of its pro­vi­sions un­con­sti­tu­tional.

Such pro­vi­sions are com­monly found in con­tracts and leg­is­la­tion — and in­creas­ingly in ex­ec­u­tive or­ders.

The most re­cent: Trump’s two procla­ma­tions Mon­day re­duc­ing the size of the Bears Ears and Grand Stair­case-Es­calante na­tional mon­u­ments in Utah. Na­tive Amer­i­can tribes and con­ser­va­tion groups have threat­ened law­suits to block the move. But even if a court rules in their fa­vor, Trump wants the judge to limit the scope of that rul­ing as nar­rowly as pos­si­ble.

The White House has re­peat­edly ex­pressed con­fi­dence that Trump’s more con­tro­ver­sial ex­ec­u­tive or­ders — on travel, trans­gen­der troops and re­li­gious

“Putting the ... clause in there sug­gests that the ad­min­is­tra­tion is aware that the courts are not go­ing to con­sis­tently ap­prove the law­ful­ness of its ac­tions.”

El­iz­a­beth Goitein Brennan Cen­ter for Jus­tice

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