Trump tries little-known legal tactic to protect controversial executive orders from the courts

Gregory Korte | USA TODAY

Show Caption Hide Caption What is the severability clause? We explain Just in case one of President Trump's orders are found "unconstitutional," his lawyers added a clause to protect orders from the courts.

WASHINGTON — President Trump is turning to an obscure legal mechanism in an attempt to protect some of his most controversial executive orders in case they're struck down in court.

It's called a severability clause, and less than a year into his presidency Trump is on pace to use them more than all of his predecessors combined.

Usually found at the very bottom of executive orders and proclamations amid other boilerplate language, the clause acts as a built-in pressure release valve. It instructs courts to leave the rest of the order intact even if they find one of its provisions to be unconstitutional.

Such provisions are commonly found in contracts and legislation — and increasingly, in executive orders.

The most recent: Trump's two proclamations Monday reducing the size of the Bears Ears and Grand Staircase-Escalante national monuments in Utah. Native American tribes and conservation groups have threatened lawsuits to block the move. But even if a court rules in their favor, Trump wants the judge to limit the impact of that ruling as narrowly as possible. If a court were to rule that he doesn't have the power to shrink the size of the monuments, for example, the clause would ask judges to keep in place provisions lifting restrictions on motorized vehicles and grazing rights.

The White House has repeatedly expressed confidence that Trump's more controversial executive orders — on a travel ban, transgender troops and religious freedom — are constitutional. But the use of severability clauses serves as an implicit admission that the White House expects its orders to be challenged in court.

"They're not just preparing for a court challenge. They’re prepared to lose," said Elizabeth Goitein, co-director of the liberty and national security program at the non-partisan Brennan Center for Justice. "Putting the severability clause in there suggests that the administration is aware that the courts are not going to consistently approve the lawfulness of its actions."

The legal device is not new — President Bill Clinton first used a severability clause in an executive order in 1993. But previous presidents used them selectively and sporadically.

Trump has escalated their use, including them in eight orders and proclamations so far.

A typical example of a severability clause reads: "If any provision of this order, or the application of any provision to any individual or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other individuals or circumstances shall not be affected thereby."

The device is so rare and untested that courts haven't ruled on what weight they should be given, and legal scholars are divided on whether they're necessary at all.

"I have to confess, I was unaware of severability clauses in executive orders at all," said former U.S. Rep. Tom Campbell, now dean of Chapman University's law school and the author of several law review articles on severability in legislation. "I'm surprised that they exist."

The severability clause has become a commonplace in legislation, helping Congress to get around one of its biggest weaknesses: gridlock. Without it, if a court strikes down an entire law because of one provision, Congress has to start over from scratch to write a new law, pass it in both chambers, and have the president sign it.

With a severability clause, the old law can go into full effect, minus the offending provisions.

The president doesn't have that problem. If an executive order is struck down, he could sign a new one the same day, taking into account the court's objections.

Still, the list of Trump orders with a severability clause are some of his most controversial, including:

► A rewritten order suspending travel from six majority-Muslim countries, popularly known as Travel Ban 2.0. The Supreme Court dismissed a case challenging the order after Trump signed a new proclamation replacing it.

► The replacement, known as Travel Ban 3.0, a September proclamation banning most travel from eight countries. It was the first time a severability clause has ever been included in a presidential proclamation, a form of presidential directive often more sweeping than an executive order. On Monday, the Supreme Court allowed that ban to remain in effect while the Trump administration appeals lower court rulings blocking it.

► An executive order instructing the Internal Revenue Service not unfairly target churches and religious organizations that engage in political speech. The Freedom from Religion Foundation has filed suit alleging the order violates the Johnson Amendment, a 1954 law that bans tax-exempt charities from campaigning for candidates.

► The memorandum codifying his policy — first announced via Twitter — banning transgender people from serving in the armed forces. Two gay rights groups, the Human Rights Campaign and the Gender Justice League, have sued to block the memorandum on behalf of three transgender individuals who serve or wish to serve in the military.

While none of the court decisions have yet taken up the issue of how the severability clause should be interpreted, they could serve to protect other provisions of an executive order if the court strikes part of the order down.

In fact, Trump administration lawyers have already made that argument in the Supreme Court case over the second travel ban order. Lower courts issued a global injunction against the travel ban — no exceptions.

But the Justice Department orders that the severability clause "compels" the courts to tailor their rulings as narrowly as possible, "with individualized exceptions for particular plaintiffs who demonstrate cognizable, irreparable harm."

If the court rules on that issue — which may be moot now that Trump has signed a new travel ban order, with its own severability clause — it could make precedent. Courts have never ruled directly on how to interpret a severability clause in an executive order — but have ruled on the absence of one.

In 1987, President Ronald Reagan signed an executive order to allow foreign-born service members who served in the 1982 invasion of Grenada to become U.S. citizens. But there was a catch: Only those who served in close proximity to Grenada were eligible.

Arthur Reyes, a Philippine-born Navy sailor, served during the Grenada conflict but not in one of the eligible areas. So he sued.

A federal court in California ruled that the order was unconstitutional because Congress allowed the president to limit eligibility for veterans by time period, but not geography. But Reyes didn't want the whole order thrown out — just the unconstitutional part.

An appeals court threw out the entire executive order, ruling that, without a severability clause, it was all or nothing.

"Although the absence of a severability clause does not raise a presumption against severability ... it does suggest an intent to have all components 'operate together or not at all,'" the 9th Circuit Court of Appeals ruled. "This suggestion coupled with the language of the order renders it apparent that the president would not have signed this order had he known it would encompass those aliens serving in the military in other geographical locations unrelated to the Grenada invasion."

Nine years later, the Supreme Court addressed a similar issue on a 1850 executive order by President Zachary Taylor kicking the Chippewa Indians off of tribal lands and stripping the tribe of its hunting and fishing rights. The court ruled that Taylor exceeded his authority in removing the Indians from the land.

But then, what about the hunting and fishing rights? "Although this court has often considered the severability of statutes, we have never addressed whether executive orders can be severed into valid and invalid parts, and if so, what standard should govern the inquiry," the Justice Sandra Day O'Connor wrote in the 1999 opinion. She nonetheless ruled that the order constituted a "single coherent policy" and struck down the entire order — restoring the hunting and fishing rights.

But that decision was 5-4, with Chief Justice Rehnquist and other conservatives dissenting. They concluded that the 1850 order was severable.

That's why some lawyers say it's smart for Trump to make his intentions clear.

"There's no harm to putting it there. It's saying to the court, 'I want to achieve as much of this policy as I can,'" said Ken Klukowski, the general counsel to the American Civil Rights Union who has written a law review article on severability. The ACRU, which has filed a friend-of-the-court brief defending Trump's travel ban, sees itself as the conservative alternative to the more liberal American Civil Liberties Union, which has challenged them.

"I think it was a very well crafted severability clause, and it was done so the president can maximize the odds, knowing there was going to be a concerted legal challenge, to protect as much of his order as he could," Klukowski said. "It was prudent and well advised."

But Trump has also inserted the provision into less controversial orders. He included one in his order reinstating the National Space Council, and in his ethics executive order banning executive branch officials from lobbying the federal government for five years.

Campbell, the former Republican congressman from California, said the increasingly routine inclusion of severability clauses seems to be part of a "belt-and-suspenders" approach.

"But why? It doesn’t seem to be necessary," he said. After all, the president could always sign a new order if the old one was ruled unconstitutional. "So here’s my best explanation: It saves time."