First appeared in BOXSCORE
By Aron Solomon
To make a painfully long story short, Novak Djokovic (yes, the same Novak Djokovic of the 2022 Australian Open visa soap opera that eventually became a tragicomedy for him and for his fans) has been denied entry to the United States for the “Sunshine Slam” that begins on Thursday.
For those who aren’t tennis fanatics, the Sunshine Slam refers to two of the calendar’s most significant events that aren’t Grand Slams – Indian Wells and Miami). Mr. Djokovic has been denied entry to the United States for the same reason as his visa denial to Australia in 2022 – he remains unvaccinated.
The U.S. regulation in issue, effective January 9, 2023, is set to expire on April 10, 2023. This was an emergency amendment to President Biden’s October 25, 2021, proclamation, “Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic,” which was also amended on April 4, 2022.
The rule is crystal clear. As Mr. Djokovic is unvaccinated, he is unable to enter the United States. Contrary to what social media pundits believe, “plays tennis really well” is not grounds for an exemption. If he wanted to enter the U.S. to play the Sunshine Slam, he needed to get vaccinated, otherwise, he can’t enter.
That was an admittedly remarkably laborious way to explain something so simple, but here we are.
Yet, again, advocates of Djokovic (social media is teeming with them) argue that this rule is deeply unfair to Djokovic because, he’s very skilled at tennis, and they like him.
An argument that is a little more legally and logically nuanced is that the regulation in issue isn’t actually a U.S. law but a presidential proclamation.
In the United States, a law is a legal measure that has been passed by Congress and signed by the President or passed by Congress over the President’s veto. Laws are typically more permanent and have a broader scope than executive orders.
On the other hand, a presidential executive order is a directive issued by the President of the United States that manages the operations of the federal government and has the force of law. Executive orders are generally used to direct the operations of executive branch agencies, but they can also be used to implement or clarify existing laws.
William Cooper, a New York lawyer, points out that:
“While both laws and executive orders have the force of law, there are some differences in terms of their authority and scope. Laws are generally considered to have more authority because they are passed by Congress and signed by the President. Executive orders, on the other hand, are issued by the President and have limited scope and authority, which can be challenged in court.”
There is also a notion that since this executive order will soon expire, an exemption should be granted to Djokovic.
Again, this isn’t how executive orders or laws work. The order is in place today. It was in place when Novak Djokovic applied, unvaccinated, to enter the United States. And it would be in place for the length of his stay in Indian Wells and Miami.
There would have been no good reason to grant Novak Djokovic an exemption from the current U.S. regulations mandating that travelers such as Mr. Djokovic need to be vaccinated if they enter the country.
At its core, this is why we have laws. Laws, executive orders, and regulations – all serve to allow things to happen or to prevent them from happening. In rare cases, exemptions from laws should be granted in the public interest. Allowing a tennis player to enter the United States to try to win millions of dollars isn’t one.
Where we allow exemptions from laws to be granted lightly, they can undermine the rule of law and erode public trust in the legal system. Even if the person at the heart of the exemption plays a mean game of tennis.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.