In the legal sphere, some of the most dominant elements of President Donald Trump’s first year in office were his executive orders. This article focuses on the following (the “Trump Executive Orders”): the three travel ban orders, the sanctuary jurisdictions order, the two successive transgender military exclusion memoranda, and the Attorney General statement indicating rescission of the Deferred Action on Childhood Arrivals (DACA) program. These orders attracted much national media attention and were clearly intended to produce political effects. As a presidential candidate, Trump campaigned for a ban on Muslim immigration and a wall at the United States-Mexico border, and made other statements that solidified support among his populist base.
The Trump Executive Orders, as efforts to fulfill some of these promises made during the campaign, have significant political roots. As documents designed to have legal force and effect, they also have legal significance. Taken together, they demonstrate a strong desire to exclude certain populations and entities from the benefits of being part of American society. The Trump Executive Orders reflect the exclusionary bent of his populism. As a political proposition, calling to exclude the outsider benefitted Trump’s candidacy. But, as a principle of presidential legal action, it has been problematic. Federal courts have been hostile to most of the Trump Executive Orders, and with respect to DACA, a federal court’s initial invalidation of the related Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program left the door open to continued operation of DACA.
The courts’ decisions indicate somewhat ironic results. The exclusionary effect of the Trump Executive Orders is, in a sense, an effort to “turn the clock back” in the affected subject-matter areas. That is, they intended to halt the momentum built during President Obama’s years in office and to begin movement in the opposite direction. Through enjoining these orders, federal courts are making analytical strides that move constitutional doctrine in a direction that conforms more with the momentum that the Trump administration is battling. While the Trump administration has been trying to halt momentum toward liberalization in the political realm, some courts have been developing new doctrines moving liberalization forward in the judicial realm. This article attempts to describe, and point to the irony of, courts using doctrinal expansion and novel interpretation in ways that run counter to President Trump’s exclusionary agenda.