The Trump administration battles international law, but is not winning – and democratic institutions can endure and heal.
By Harold Hongju Koh*
As Donald Trump’s presidency careens into its third year, observers experience exhaustion, whiplash and bewilderment. Each day brings new, wildly contradictory assessments of the progress of his myriad initiatives. But as I argue in a recent book, in the sharp struggle with international law, he’s not winning.
Trump’s signature immigration policies only prove how enmeshed he has become by law. After three iterations and numerous adverse court rulings, Trump’s travel ban barring nationals from Muslim-majority countries narrowly survived before the US Supreme Court, but the litigation is not yet over. The plaintiffs failed to prove the ban unconstitutional on its face, but the elaborate system of individualized exemptions and waivers accompanying the ban could yet be found discriminatory as applied. Moreover, the court’s ruling, which rested on statutory grounds, could be reversed in the legislative arena now that the House of Representatives has changed hands. And because no airline flies from any of the banned countries directly to the United States, authorities in each country of transit must decide whether they will cooperate in religious discrimination that appears to violate international and European human rights law.
Previous administrations handled undocumented family border crossings through civil immigration proceedings. Trump announced that detention, deportation and criminal prosecution would become the rule for any undocumented person crossing into the United States, regardless of whether they could ultimately establish the right, under both domestic and international law, to be present in the United States as a bona fide asylum seeker fleeing persecution. Relying on a discriminatory group stereotype, Trump presumed without proof that every undocumented individual crossing a US border is a criminal rather than a victim protected by American and international refugee laws. To strictly implement his “zero-tolerance” policy, the administration took the horrifying step of separating thousands of children from their parents, who were then held in adult jails pending court appearances
As wrenching images of small children being forcibly taken from their parents flooded the media, massive street protests erupted. Once again, the Trump administration overlooked the law. In the 1997 Flores litigation, a federal court had entered a settlement directing that children could not be held in detention for more than 20 days, so if detained families are to stay together while awaiting immigration proceedings, they must stay together outside of jails. A federal judge gave the administration two weeks to return separated children younger than five to their parents and 30 days to reunite parents with several thousand older children detained by the government, leading Trump to issue an executive order reinstating family unity. And because US immigration authorities lack the facilities to detain thousands of families, the administration soon reversed course again, abruptly announcing that reunited migrant families would be released into the United States with the parents wearing ankle monitors. Thus, under pressure from the courts, Trump reverted to allowing families into the United States to await immigration proceedings, which barring reversal of the policy, could take years.
Warning darkly of a “caravan” threatening to invade the southern border, Trump then claimed that he would eliminate birthright citizenship, ignoring would require a constitutional amendment revising the Fourteenth Amendment’s mandate that “[a]ll persons born … in the United States … are citizens of the United States ….” The administration then pivoted to a new policy whereby entering aliens could only claim asylum at a recognized port of entry, violating a statutory directive that “[a]ny alien … who arrives in the United States (whether or not at a designated port of arrival) … may apply for asylum.” Trump then shut down the US government over his unpopular demand for a taxpayer-funded wall – which he had campaigned for on the repeated false cry that Mexico would pay. He caved, first after three weeks and again in February, while announcing a legally dubious national emergency sure to be challenged in the courts.
Time and again, law has pushed Trump’s immigration policies back. Trump and his subordinates overlooked how the patchwork of laws and policies they scorn as “catch and release” provide legal protections for vulnerable populations accorded special solicitude by the United Nations, Congress and the courts. Trump never did the hard and tedious work of mobilizing bureaucracy to invoke existing legal mechanisms pressuring Congress or the courts to change the laws through established channels. So the law remains unchanged, and Trump’s immigration policies have largely reverted to the status quo ante, but only after massive public outcry and untold human suffering.
On global matters, a similar tale of continuity and resilience can be told. A pattern has emerged whereby Trump signals that he will disrupt a settled relationship, the media explodes, US allies push back, Trump partially recants and policy eventually resettles in roughly the same place as before Trump roiled the waters. North Korea vividly illustrates how Trump has disrupted the status quo without meaningful policy change. After issuing a vaguely worded June 2018 Singapore Declaration, he tweeted, “I have confidence that Kim Jong Un will honor the contract we signed & even more importantly, our hand-shake. . . . [which] agreed to the denuclearization of North Korea.” He plainly misunderstood that under international law, a handshake creates no binding treaty, contract or agreement. Instead of clarifying a negotiating sequence, Trump naively concluded that two countries merely talking about “denuclearization” had enough concrete legal meaning to merit tweeting that the threat had somehow abated. It soon become embarrassingly clear that Kim had played Trump by securing equal billing with a sitting American president, demanding that he adhere strictly to the terms of a Singapore Declaration that contains no specifics. When Trump’s aides speak of “denuclearization,” they imagine a detailed, sequenced series of steps that Trump apparently never described to Kim – and may not understand himself – actually leading to “complete, verified, and irreversible denuclearization” of the peninsula.
Former President Barack Obama’s policy of “strategic patience” toward North Korea, which Trump derided, had called for bilateral and multilateral dialogue, negotiated freezes, confidence-building measures, and agreements gradually to roll back the North Korean nuclear program through enhanced deterrence and strengthened regional alliances. The Obama administration followed precisely these smart-power steps to build the Iran nuclear deal, which Trump abandoned without a Plan B. At his recent State of the Union speech, Trump trumpeted that he would have a second summit with Kim, again without specifics. And even though North Korea had already taken down Sony’s American grid in a massive cyberattack, Trump did not address the looming threat posed by North Korea’s growing cybercapacities. In short, over two years, America’s North Korea policy slowly reverted to square one, moving no closer to real North Korean denuclearization. Trump’s zeal to claim premature victory, combined with temperamental unwillingness or inability to do the hard work of mobilizing his bureaucracy to build international legal mechanisms, has led the policy back to an inferior version of the status quo ante.
At home, law has largely contained Trump’s excesses. As my book recounts, across a broad range of policy issues – immigration and refugee law, human rights, trade diplomacy, climate change, North Korean and Iranian denuclearization, cybersecurity, Russian adventurism and America’s wars – the law is pushing back against his assaults, leaving the status quo largely intact. But Trump is not an isolated phenomenon, and the consequences abroad have been more dire as authoritarians in Austria, Italy, China, the Philippines, Russia, Saudi Arabia and elsewhere copy his playbook: demonizing immigrants, cowing legislators, disparaging bureaucrats, intimidating judges and journalists, rewarding cronies, and claiming that constitutional checks and balances must give way to the “will of the people.” A prominent global rule-of-justice index reported that fundamental human rights had diminished in 71 of 113 countries surveyed in 2017.
This collective effort to undermine the rule-of-law institutions of the post-war legal order – whether the United Nations, the European Union or global institutions of trade and security – calls into question continued stability of the postwar system of Kantian global governance. America’s domestic and international law and civic institutions, while largely checking Trump at home, are battered and might eventually give way should Trump be reelected. The story reiterates the need to support and believe in the resilience of law and enduring core institutions: the courts, Congress, the media, bureaucracy, subnational entities and civil society. With luck and perseverance, these institutions and processes will outlive Trump’s deviations and play a critical role in reknitting together America’s society and alliances when he is gone.
*Harold Hongju Koh is Sterling Professor of International Law and former Dean at Yale Law School, where he has taught since 1985. He served as Legal Adviser of the US Department of State from 2009-13 and Assistant Secretary of State for Democracy, Human Rights & Labor from 1998-2000. He has authored or co-authored nine books, including, most recently, The Trump Administration and International Law, published by Oxford University Press, from which this article is adapted.