Administrative actions are those actions which are necessary to be done to carry out public policy and purposes already declared by the legislation. A recent example of such an action can be seen in the order No, 13769 issued by Donald Trump as the President of United States for the protection of the US nation from foreign terrorists and particularly their entry into the country. This order banned for 90 days the entry into US of individuals from seven countries specified in the order.
Two states challenged the said executive order as unconstitutional and violative of federal law, and a federal district court preliminary ruled on their favoured temporarily enjoined enforcement of the said order. The said act of the district court was challenged before the Court of Appeals of the 9th circuit and prayed for the issuance of a temporary injunction against the district court's order.
While entertaining such requests courts consider several factors like showing that the applicant is likely to succeed on the merits of the case, the degree of hardship caused by a stay or its denial, and public interest in granting or denying the stay. Obviously, public interest in the case involved sensitive and weighty concerns on both sides. The point to note is that the aggrieved party had to satisfy the court on two counts namely, likelihood of success of the applicant in the lower court and to show that there will be an irreparable loss in event their prayer is denied.
The executive order had stated many reasons why the President took a sweeping action. And these included: to ensure that those entering US should not bear a hostile attitude towards US including its founding principles, deteriorating conditions in the affected countries increase the likelihood that terrorist will use possible means to enter the US, etc, therefore the US had to be vigilant during the visa issuance process to ensure that those approved for admission do not intend to harm Americans and that they do not have ties to terrorism.
The executive order made several changes to the policies and procedures such as banning entry of aliens from specified countries for 90 days, (section 3(c) of the order, suspended for 120 days admission of refugees, section 5(a), prioritise the claim of refugees based on religious persecution, section 5(b), suspending the entry of Syrian refugee program indefinitely section 5(c)and 5(e).
It badly affected thousands of people and created chaos at the entry points, that is why the states did challenge this action of the President. The plaintiffs contended that the order was unconstitutional and illegal as it restricted the travel, damaged the State's economy including the public Universities, (in violation of first and fifth Amendment to the Constitution), and that the order was not truly meant for protecting the US citizens. It was to enact a Muslim ban based on election rhetoric. The states accordingly asked the court to declare the executive order as illegal and unconstitutional.
The district court allowed the injunction application of the states and the enforcement of the executive order was stayed. This order was challenged by the government before the court of appeals (9th circuit). An immediate stay was sought against the order of the district court which was denied by the court of appeals.
From many angles of legal theory the matter was not only interesting but also gave rise to some important questions of law and jurisprudence. The legal issues giving rise to the battle were as follows: whether or not the appellate court had the jurisdiction to entertain the application of the Government, whether or not the district court had the subject matter jurisdiction, reviewability of the executive order, required legal standards, likelihood of success on the issue of due process, likelihood of success on the issue of religious discrimination, and the balance of hardship and the public interest.
The court deliberated on all these issues and verbal arguments were heard. As regards the issue of jurisdiction, the court came to the conclusion that in the extraordinary circumstances, the order of the subordinate court possessed the qualities of an appealable order as the court's order had no expiry date, no further hearing had been fixed, and there existed unusual circumstances giving the court ample cause to entertain the appeal.
As regards the issue of subject matter jurisdiction the court held that in terms of section 2 of the Article III of the Constitution the federal court had the jurisdiction to hear the case and controversies and these two words sufficiently empower the court to undertake cognizance of such cases since the states had prima facie suffered a concrete and particularized injury, and the states had argued that the functions of their universities were going to be affected and that fact sufficiently establishes their right to sue the President; in other words, the States argued that they had the third-party standing which in the past precedents has been considered a sufficient cause for litigation. The court accordingly held that the alleged harm of state's proprietary interest was sufficient and the court had the standing to challenge the decision of the President.
As regards the right of reviewability the court cited the case of Zadvydas v. Davis, 533 US 678, wherein it was held that the power of the political branches over the immigration is subject to important constitutional limitations and the argument that Congress had unreviewable authority over the regulation of aliens was rejected. The court further held that the courts have jurisdiction to review all executive exercises relating to immigration authority, see in this regard Mandel's case. The court held that Federal judiciary retains the authority to adjudicate constitutional challenges to executive actions.
As regards to the issues of legal standards, the court considered whether or not the stay application did make a strong showing, whether there any element of irreparable loss, whether issuance of stay will substantially injure the government, and in whose favour the public interest lies and by following a long line of precedents in this regard the court held that the elements above stated were not in favour of the government.
As regards the issue of due process clause of the US constitution, the court observed that the Government was of the view that the aliens had no right of due process in this regard. The court accordingly concluded that the Government had failed to establish that it will likely succeed on its due process argument.
The issue of religious discrimination was found to be inconsistent with the equal protection clause and raised serious allegations of discrimination and there was no likelihood that the government had any chance to succeed on this count.
As regards the issue of balance of hardship, as per the court the government failed to show that there was any element in favour of the applicant.
Thus, on all these counts the appeal filed by the government of the US was disallowed and the stay granted by the District was allowed to remain in place.
Keeping in view these facts and the verdict of the court, we are reminded by HLA Hart's theory of law wherein he argues that there will be many instances where the question of determination of legal rules will be at stake as in many cases departments and organisations of the state fail to implement the legal rules by questioning their legal validity and in that case there is need of a rule of recognition which may settle these issues. Generally, it is understood that by rule of recognition Hart meant was that of the presence of the Constitutional provisions, and as we have observed in the case recently decided by the US court of appeals the issue was that of recognising the existence of a rule of recognition and as rightly pointed out by the court that the error in the President's executive order was that of its conflict with the provisions of the US constitution.
(The writer is an Advocate and is currently working as an Associate with Azim-ud-Din Law Associates Karachi)