Democrats Have Few Options on Trump Travel Ban

Minority status means they can’t file a lawsuit or force legislation

From left, Reps. Don Beyer,  John Delaney, Gerry Connolly and Jamie Raskin (not pictured here) speak to the press and protesters about possible detention of travelers and legal access at Dulles International Airport in Virginia on Sunday, Jan. 29, 2017. Protests erupted at airports around the country following Trump’s executive order restricting travel from several Islamic countries. (Photo By Bill Clark/CQ Roll Call File Photo)

Congressional Democrats were quick to condemn President Donald Trump’s new executive order temporarily barring travel from a handful of predominantly Muslim countries, but there isn’t much they can do about it.

As the minority party in the House and Senate, they cannot force Congress to take up legislation overturning the ban. And legal and procedural hurdles prevent Democratic lawmakers from taking the order to court themselves. 

Trump announced Monday that he had issued a new executive order temporarily banning travelers from six countries: Iran, Libya, Sudan, Somalia, Yemen, and Syria. The president revised a previous order that also barred visitors from Iraq. Republicans got behind Trump’s new missive as bolstering national security, while Democrats criticized the order as a thinly veiled ban on Muslims.

“Despite the administration’s changes, this dangerous executive order makes us less safe, not more, it is mean-spirited, and un-American,” Senate Minority Leader Charles E. Schumer said. “It must be repealed.”

Connecticut Sen. Christopher S. Murphy announced that he would introduce a bill to overturn Trump’s new order. But, with Trump’s party in control of the Senate floor, the Connecticut lawmaker’s bill is not likely to move forward.

Senate Majority Leader Mitch McConnell did not immediately comment on the new travel ban, but he previously said the constitutionality of Trump’s earlier order would be worked out through the court system. Speaker Paul D. Ryan, who controls the House floor, said the new action “advances our shared goal of protecting the homeland.”

The previous order had been blocked by a federal appeals court, prompting the rewrite. But some are already clamoring to fight the revision.

“President Trump, we’ll see you in court,” David Cole, the American Civil Liberties Union’s legal director, wrote in a post on the group’s website. 

“The new order will be less catastrophic in its rollout than the first, both because it exempts those who already have visas and because it will not go into effect until March 16,” Cole wrote. “But it’s still religious discrimination in the pre-textual guise of national security. And it’s still unconstitutional.”

Democrats could opt to file amicus briefs in support of lawsuits challenging the order. Those briefs are documents filed by people who are not parties in the case.

But congressional Democrats do not have many other legal avenues to challenge the order through the court system. So don’t expect to see a lawsuit similar to the one from House Republicans suing President Barack Obama’s administration over the 2010 health care law.

That’s because, as members of Congress, Democrats face two major obstacles when it comes to filing a lawsuit: proving their standing in court and overcoming Republicans who have a say in the process.

“At this point, it seems that a House Democratic amicus brief would probably be the only option,” said a senior Democratic aide.

In the 2014 health care lawsuit, House Republicans directed the general counsel for the House of Representatives to sue the Obama administration.

The chamber’s lawyers had to prove that the House as an institution was injured by the administration’s actions in order for the lawsuit to have standing in court. A federal judge sided with Republicans last year, agreeing that the administration had spent funds without congressional approval, violating Congress’ constitutional authority to appropriate funds.

Democratic aides noted that in the case of the travel ban, proving injury to the institution would be difficult, so they would likely not have standing in court. 

But congressional Democrats would also not be able to file a lawsuit in the first place.

For the House’s general counsel to file a lawsuit on behalf of the chamber, the office needs the approval of the Bipartisan Legal Advisory Group, according to House rules. The five-member group is controlled by Republicans, since it is comprised of the speaker and both parties’ leaders and whips. 

In the Senate, the Office of Legal Counsel represents the body in lawsuits, and is not typically used for partisan fights. It answers to the Joint Leadership Group, which is made up of the leaders of each party, the president pro tempore, and the chairmen and ranking members of the Judiciary and Rules and Administration committees. Senate rules also require that senators approve a resolution authorizing the office to represent the body or members in court.

With few options on the floor and in the courts, Democrats will likely continue to use their platforms to share stories of those affected by the travel ban, and count on other lawsuits to challenge the order. 

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