During the US election campaign – and for a few hours into the new presidency – comfort was taken in the soothing mantra that Donald Trump could ‘be taken seriously but not literally’. Many chose to ignore his tweets on the grounds that ‘what somebody’s saying is not necessarily what they’re going to do’.
In barely more than a week, that facile wisdom has been undermined, and most provocatively so in the wide-ranging executive order halting all refugee admissions and barring temporarily people from seven Muslim-majority countries.
The order has sparked a global storm. Fury has erupted at airports, and criticism, far from being confined to civil rights groups, has rained down from Western government leaders including Germany’s Angela Merkel and, belatedly, Prime Minister Theresa May. Foreign Secretary Boris Johnson has gone on social media to declare that it is “divisive and wrong to stigmatise because of nationality.”
It is scarcely credible that the US president could have presented such an open goal to his opponents.
The powers covered by this executive order include a suspension of the US Refugee Admissions Programme for 120 days; an indefinite ban on Syrian refugees; a 90-day suspension on anyone arriving from seven Muslim-majority countries; a cap of 50,000 refugees to be imposed and suspension of a provision allowing consular officers to exempt some applicants from face-to-face interviews.
So sweeping are the powers that Britain’s four-time Olympic gold medallist Sir Mo Farah has been left unsure whether he can return to the United States.
It is one thing to tighten controls on immigration. It is quite another to resort to sweeping emergency-style powers that barely allow for any consideration of those who have legal permanent US residency – so-called ‘Green card’ protocols - and those with established residence bona fides.
It is a drastic resort to executive power. Such an immediate international hostile reaction, together with chaotic scenes at airports, were entirely predictable. Indeed, it cannot but inflame further anti-American feeling.
President Trump may believe that the act of signing such an order in front of TV cameras, makes it as good as law. And he may choose to wave aside international protest. But he does not have carte blanche.
Congress has the power to overturn an executive order by passing legislation that invalidates it.
Congress can also refuse to provide funding necessary to carry out certain policy measures contained with the order.
It is also subject to judicial review, and may be struck down if the courts deem it to be unsupported by statute or the Constitution.
Already a federal judge has issued a temporary halt to the deportation of visa holders or refugees stranded at US airports.
President Trump may brazenly flaunt the powers of his new office. He must now be shown its limits, and as soon as possible.