Can someone tell me the difference between an “executive order” and a “presidential proclamation”? I don’t think I learned that in law school, and for sure it was not on the bar exam. Frankly, before September 24, 2017, I would likely have used the phrases interchangeably. And yet, as of September 24, 2017, many of my colleagues are wondering about the purported difference.
The definitions of “executive orders” and a “presidential proclamations”, including their differences, is not easy to express as the U.S. Constitution does not contain any provision referring to them. The most widely cited explanation came in 1957 from the House Committee on Government Operations, which explained the difference as follows:
Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law . . . . In the narrower sense Executive orders and proclamations are written documents denoted as such . . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute. The President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance . . .[1] (Emphasis added.)
So why would the president’s first two efforts at a travel ban be in the form of “executive orders”, and his most recent effort be in the form of a “proclamation”? Frankly, I’m not quite sure, but I suspect that whether the courts find Travel Ban 3.0 to be enforceable, either in part or in total, will turn more on its substance and not by whether it’s a presidential proclamation instead of an executive order.[2]
So, then, what’s the deal with Travel Ban 3.0? The President’s proclamation, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats,” was issued by President Trump following a worldwide review of information sharing practices between the U.S. and nearly 200 foreign countries. The purported purpose was to assess whether nationals of each country seeking to enter the United States pose a national security or public safety threat to the United States. As a result of this review, eight (8) countries have been deemed to have inadequate identity management protocols, information sharing practices, and risk factors. They are Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. It was also determined that Iraq did not meet the baseline requirements, but nationals of Iraq will not be subject to an outright ban on travel, but rather will be subject to additional screening measures.
There are exemptions under the President’s proclamation, such as the travel restrictions do not apply to lawful permanent residents (i.e., Green Card holders) of those countries, and foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture. There are other exemptions as well.
There are also waivers available if a foreign national can demonstrate that (a) denying entry to the United States would cause the foreign national undue hardship, (b) entry would not pose a threat to the national security or public safety of the United States, and (c) entry would be in the national interest.
Not surprisingly, the anti-administration forces argue that this is yet another attempt by the President to further his discriminatory and anti-immigrant policies and does nothing to strengthen our national security. I tend to agree.
The new travel ban goes (or went, depending on when you’re reading this) into effect on October 18, 2017, but the ban is effective immediately for anyone whose entry to the U.S. was previously barred by the administration’s prior travel ban (Executive Order 13780 dated March 6, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”) (i.e., nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona fide relationship with a person or entity in the United States).
Also, until October 18, 2017, citizens of Iran, Libya, Somalia, Syria, and Yemen are exempt from the new travel ban if they have a “bona fide relationship” with a U.S. person or entity. (This is actually an issue in the courts at the moment.)
And finally, unless an exemption does apply or an individual is eligible for a waiver, the restrictions of Travel Ban 3.0 apply to individuals of the eight (8) designated countries who (a) are outside the U.S. on the applicable effective date, (b) do not have a valid visa on the applicable effective date, and (c) do not qualify for a reinstated visa or other travel document that was revoked under the President’s earlier travel ban (Executive Order 13769 dated January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”).
I have written before, and no doubt will do so again, that immigrants and refugees contribute in a positive way to our nation by strengthening our local businesses, communities, and national economy. Travel Ban 3.0 will do little more than simply harm families, negatively impact our business community, and undermine our national values.
[1] Staff of House Committee on Government Operations, 85th Congress, 1st Session, Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Committee Print 1957).
[2] Both executive orders and proclamations have the force of law, akin to regulations issued by federal agencies, so they are codified under Title 3 of the Code of Federal Regulations (“CFR”), the CFR being the formal collection of all of the rules and regulations issued by the executive branch and the federal agencies. Neither executive orders nor proclamations are legislation, however. Neither require approval from Congress, and Congress cannot overturn them. On the other hand, Congress can pass legislation that can make it difficult, or even impossible, to carry out an executive order or presidential proclamation. Nevertheless, only a sitting President can overturn an executive order or proclamation by issuing another executive order or proclamation to that effect.