John Kurtz '19
Guest Columnist
Over the past two weeks, America has been buzzing with discussion about a controversial executive order signed by President Trump. The order, issued on January 27, places an indefinite ban on the admission of Syrian refugees into the United States and temporarily suspends entry by nationals of seven countries: Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen. The travel ban imposed on citizens of these nations is to last for 90 days while the Trump administration develops protocols for heightened vetting.
Since the order was signed, the news media has dedicated a significant amount of time and energy to discussing the motivations, implications, and constitutionality of the order. Social media is no longer a safe space to look at videos of cute puppies and evil Kermit memes during a five-minute study break. Instead, everyone has seemingly become an expert in political science and constitutional law overnight, writing obnoxiously long political posts accompanied by misleading hashtags. But if one good thing has come from all of this, it is that America has been presented with a golden opportunity to learn a valuable lesson: you cannot believe everything you read on Facebook.
While social media has its benefits, one significant drawback is that misinformation can spread much faster than it ever could when the news was broadcast exclusively by the big three television networks. The reaction to President Trump’s executive order has been no exception. The United States has become extremely polarized over the past several years, thanks in no small part to the divisive rhetoric of our current president. These wounds will never begin to heal, however, if we fall prey to the fictions being put forward about President Trump’s executive order. Presented below are three of the most prominent.
Trump’s executive order is a Muslim ban.
While the seven countries covered by the order have majority-Muslim populations, this order does not come even close to preventing all Muslims from entering the United States. According to the Pew Research Center, there are 49 countries in the world with majority-Muslim populations, and the seven countries listed in the executive order have only about twelve percent of the 1.6 billion Muslims in the world. Countries like Saudi Arabia, Pakistan, and Turkey are all excluded from the order. If President Trump truly wanted to keep Muslims from entering the United States, he should have started with Indonesia, which has as many Muslims as the seven countries covered by the order combined. Furthermore, this order prohibits people of all religions who are citizens of these seven countries from entering the United States, including Christians and Yazidis. The test for entry is not religious, but one of national origin.
The inclusion of these seven countries is quite clearly motivated by national security concerns. The seven countries listed have been designated as countries of concern by both the Obama and Trump administrations. Each of these nations has been war-torn or compromised by the threat of violent jihadism or has a national government hostile to the United States. Invoking the memory of 9/11, the executive order states that it seeks to prevent this threat from reaching the shores of the United States. ISIS is the largest and wealthiest terrorist organization the world has ever seen, and the gravity of the jihadist threat has already been felt in major Western cities like Brussels and Paris. It should come as no surprise that a Republican president who campaigned on a promise of protecting Americans from the jihadist threat would sign an executive order to do just that.
There is, however, good reason for many Americans to doubt the sincerity of the president’s motivations in signing this order. During the campaign season, then-candidate Trump called for “a total and complete shutdown of Muslims entering the United States.” It is no surprise that many Americans view this executive order as a Muslim Ban, but the facts simply do not support that belief. President Trump’s executive order preventing immigration from these majority-Muslim countries is no more Islamophobic than President Obama’s routine drone strikes on majority-Muslim countries. Both policies were designed to prevent the spread of jihadist extremism, not to discriminate against all Muslims. If President Trump were to implement a policy that banned all Muslims from entering the United States, he should be opposed. But for now, that is not what has been implemented.
These restrictions on immigration are unprecedented.
This accusation focuses primarily on three specific provisions of the executive order: the indefinite ban on admission of Syrian refugees, the 120-day halt on all refugee admissions followed by an annual 50,000-person cap on refugee admissions, and the use of national origin as a basis for discrimination in immigration policy.
Not only have these restrictions been used before, each of them was implemented to some degree under President Obama. Based on data compiled by the Migration Policy Institute, President Obama only admitted an average of 377 Syrian refugees per year from 2011 to 2015, with fewer than 100 of those refugees being admitted from 2011 to 2014, the height of the Syrian Civil War. In regards to the 50,000-person cap on refugee admissions, President Bush only admitted more than 50,000 refugees in four of his eight years in office, and President Obama capped refugee admissions at 70,000 from 2013 to 2015 with barely more than 50,000 being admitted in 2011 and 2012. It was not until 2016 that President Obama greatly increased the number of refugees. Finally, it was President Obama who enacted 8 U.S. Code § 1187(a)(12), which provides that no immigrant is eligible for the Visa Waiver Program if they have been present in Iraq or Syria after March 1, 2011, or if they have been present in any country that DHS has designated as a country “of concern.”
Like President Trump, Presidents Bush and Obama were concerned about immigration from countries where ISIS or other terrorist organizations have significant ties. If the data show any one immigration policy to be a historical aberration, it is President Obama’s expansion of refugee admissions in 2016.
Trump’s executive order is clearly unconstitutional.
This is perhaps the favorite fiction among aspiring lawyers. There is no doubt that there will be much litigation regarding President Trump’s executive order, but it is not so clear that the outcome will inevitably be against the administration. According to Andrew C. McCarthy, a former federal prosecutor who specialized in terrorism and national security cases, the Trump administration will have both constitutional authority and statutory law to support its position.
First, he argues, our very own Thomas Jefferson wrote that, under the Constitution, “The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specifically submitted to the Senate. Exceptions are to be construed strictly.” The Supreme Court also recognized in United States v. Curtiss-Wright (1936) that the President has plenary and exclusive power in the field of international relations, a power which does not require an act of Congress to exercise.
Critics of McCarthy’s position have pointed out that Trump’s order contravenes a 1965 immigration law, now 8 U.S. Code § 1152(a), which prohibits discrimination in granting immigrant visas based on nationality or place of residence. This statute is often invoked as evidence that § 1182(f), which authorizes the President to indefinitely suspend the entry of any immigrants he deems detrimental to the interests of the United States, has been amended to prevent the President from discriminating based on national origin. However, this argument gets complicated when considering the aforementioned Obama-era statute, § 1187(a)(12), which plainly discriminated against Syrian and Iraqi citizens attempting to immigrate to the United States.
Either the Obama and Trump administrations are both breaking the law, or the Obama-era statute, which President Trump’s order explicitly invokes, has amended the 1965 statute to allow the president to implement immigration restrictions that discriminate based on nationality in the interests of national security.
It is quite possible that the courts will rule against these arguments. But it is simply a fantasy to argue that the Trump administration is running afoul of such clear constitutional and statutory law and that the courts will find no grounds to rule that the executive order is legal.
While each of the above fictions may not be true, there is still cause for concern regarding this executive order. There was initially much confusion about whether this order applied to green card holders, and it took some time before the administration came to the sensible conclusion that it did not. As of this writing, CNN is reporting that the Trump administration is complying with a Seattle federal judge’s order suspending implantation of the executive order, but the administration is already preparing its legal case. Should he lose, President Trump must abide by the decision and respect the separation of powers enshrined in our Constitution. While we may disagree on the wisdom and legality of his executive order, we must stand united in our support of the rule of law. The stability of our government, and our nation depend on it.
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jck3dy@virginia.edu