A Thought on The Immigration Executive Order

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"And a stranger shalt thou not oppress; for ye know the heart of a stranger, seeing ye were strangers in the land of Egypt." Exodus 23:9

 

President Trump recently published an Executive Order limiting entrance into the United States by individuals from Iraq, Iran, Syria, Libya, Yemen, Sudan and Somalia, except under certain circumstances (e.g., diplomatic Visas) and suspending certain Refugee programs.

 

Is This Constitutional?

 

1.  Does the President Have the Authority to Do This?  

 

Yes. 

 

The President has power, under the "Take Care" Clause,  to enforce the existing laws made by Congress. 

 

This does not give the President power to create new law, but merely allows the President to detail how the law will be enforced under given circumstances.  Pres. Carter did something similar to President Trump's order when he cancelled the visas of Iranian students during the Hostage Crisis in 1980 as did Pres. Obama when he slowed down the admission of certain Iraqi refugees in 2011 after some individuals admitted under that  program were involved in terroristic activity. 

 

2.  Does this Comport with the Equal Protection Clause of the Fourteenth Amendment?

 

More of a question, but probably.

 

This is not a "Muslim Ban," as it temporarily halts "immigrant and nonimmigrant entry" from those countries, notwithstanding the religion of the person trying to gain entry.

 

Further, it is not even clear if the provisions of the First Amendment protecting 'free exercise" of religion would even apply to non-citizens seeking admission to the US. 

 

Almost certainly, however, you could attack a "Muslim Ban" as "establishment" or a restraint on "free exercise" under the First Amendment as a limit on the federal government power rather than as asserting a citizen's right.   However, this is not a "Muslim Ban" so that point is moot.

 

Possibly, as some people have attempted to do, you could argue that there is no nexus of operative facts linking immigrants and refugees from these countries to terrorism in the US. 

 

For example, Tsarnaev Brothers who bombed the Boston Marathon were Chechens, Omar Mateen, who shot several people in an Orlando LQBTQ nightspot was the American-born son of Afghans and MAJ Nidal Hassan was the American-born son of Palestinian Immigrants (as well as being a Doctor, a Field Grade Officer, a former US Army Enlisted Soldier and, like Steve Bannon, a product of the Virginia Tech Corps of Cadets). 

 

However, there have been incidents in the US involving Somali-American immigrants (the Mall of the Americas stabbing incident and the Ohio State stabbing incidents in 2016) and there were incidents involving Iraqis that lead to the 2011 slowdown ion processing Iraqis, ordered by President Obama in 2011.

 

A somewhat related argument is that other predominately Muslim countries (where there is a nexus to terrorist acts) are not banned, notably the Kingdom of Saudi Arabia ("KSA") (15 of the 19 hijackers were Saudi nationals)  and Pakistan (where the ISI was a major early force in the formation of AQ).

 

However, the common thread between the nations on the list is that they are either hostile states (Iran, which has been in a state just less than war with the US for most of the period from 1979 and the present) or are failed or fragile states.    In contrast, both the KSA and Pakistan are sovereign states that have cooperated in screening immigrants, at least since 9-11.

 

Neither a hostile state nor a failed state is likely to cooperate effectively in screening immigrants or refugees. As counterterrorism expert Seb Gorka has said these nations had been of concern to the Obama Administration, as well.

 

Arguably, Iraq is neither hostile nor failed.  It is an existing state that is somewhat allied with the US like Afghanistan.  However, like Syria, a considerable (but declining) portion of its territory is occupied by the Islamic State ("IS"). 

 

In fact, in 2015, when Fallujah and Ramadi fell to IS, the Government of Iraq held up refugees from entering Baghdad until they were screened.  (Which may not have worked, as Baghdad has been hit by terrorist bombing several times since.) 

 

3 .  Does This Pass Muster Under the Due Process Clause?

 

Probably not.

 

The roll out of the program was a catastrophe, with people with valid visas being detained without proper process.  This is why a judge from the EDNY enjoined enforcement.  However, this kind of issue can be much more easily addressed than a claim that this beyond the President's authority or violated Equal Protection.

 

Does Doing This Make Any Practical Sense?

 

As  the Hmong people can attest, the US has not always done overly well in keeping promises to local people who help us in our "Savage Wars of Peace."  Anything that causes us to abandon people like Iraqi translators, or even tribesmen who supported us during the Anbar Awakening, is a blot on our national escutcheon and a potential  Information Operations ("IO") windfall for IS and AQ.

 

Refugees from Syria (and IS occupied areas of Iraq) are a bit of a different case. 

 

Although the vetting process for refugees can take up to two years, it is not the kind of screening that was done during the Cold War with defectors from the East ("Strategic Debriefing").  Given some incidents that have occurred in Europe, we should set up screening processes at least as rigorous as those used for defectors during the Cold War.

 

This is both like and dissimilar to the MS St. Louis/"Voyage of the Damned" incident in 1939.

 

Like the MS St. Louis incident, our barring refugees provides IS and AQ with a potential IO victory. 

 

On the other hand, there is a palpable risk in admitting unvetted immigrants or refugees in this situation not present with refugees from the Nazis.  So long as the ban is only temporary (and effective approaches to screening and vetting are developed), this is probably a sound practical course of action.

 

A More Controversial Issue

 

A more controversial issue that this does not address is why immigrants or refugees or the children of immigrants or refugees (like Hassan, the Tsarnaev Brothers or  Omar Mateen) become so disaffected?  While these are only a small minority of this entire population, any such event creates an IO opportunity for AQ and IS in what is probably an IO war where the "key terrain" is the "Arab (or better, "Muslim") Street." 

 

Does the US no longer have a distinct or powerful identity that can bind immigrants or refugees?

Comments

Patrick Writes Added Feb 1, 2017 - 6:37pm
Did the passage at the start of the post apply to the ancient nation-state of Israel or to all societies for all of time? (By the way, they permitted non-Canaanite immigrants so long as they became "Jewish".) 
 
3 verses later in Exodus 23:12 it says: 
"Six days do your work, but on the seventh day do not work. "
 
Did that apply to the ancient nation-state of Israel or is that binding on all societies for all of time?
John Minehan Added Feb 1, 2017 - 6:49pm
Given the importance this verse has to the sages ("In every generation, a person is obligated to show him or herself as though s/he came forth from Egypt."  Rambam, Hilkhot Chamez u’matzah 7:6), it is probably intended to bind the Jewish people in perpetuity.
 
The verse also appears in Christian scripture.
 
Further, Mathew 23:35 states, "For I was an hungred, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in . . . ."
 
Now, if you follow neither of these traditions, it constitutes good advice, very old and very good advice, but good advice and not law. 
 
 
   
Dino Manalis Added Feb 1, 2017 - 7:36pm
Instead of banning, people should be screened anywhere they come from, regardless of religion, including Canada and Mexico.
John Minehan Added Feb 1, 2017 - 7:45pm
"Instead of banning, people should be screened anywhere they come from, regardless of religion, including Canada and Mexico."
 
I think the intent is to figure out how to do that when the local government is weak (Libya) to nearly non-existent (Somalia, although the TNG is making progress). 
John Minehan Added Feb 1, 2017 - 7:46pm
There has to be some kind of law to interpret and room for interpretation.
Billy Roper Added Feb 1, 2017 - 8:36pm
Why is it that the refugees aren't being taken in by the five richest Gulf states, which are already Muslim and so would be more culturally comfortable for them?
Bill Kamps Added Feb 2, 2017 - 7:01am
Most people who are protesting dont even understand what the law was before Trump changed it.  We see people protesting that we are not treating all countries the same for immigration.  We NEVER treated all countries the same.  Some people needed visas, some did not, some visas were much easier to get than others, this is just common sense and was always part of the law.  This is how ALL countries do it.  Most people dont know that the passport control officers can detain ANYONE including citizens and ask them more questions.  Its happened to me returning to the US, going to Canada, and leaving the Netherlands.  Part of the process.
 
Having said that, what was done was clumsy, and generated unnecessary backlash against Trump.  He acts as though he doesnt care, but eventually he will learn that his currency to get things done is public support and opinion.  If it drops too low, Congress wont bother to listen to him, and his executive orders will be challenged and stopped. 
John Minehan Added Feb 2, 2017 - 2:50pm
"Why is it that the refugees aren't being taken in by the five richest Gulf states, which are already Muslim and so would be more culturally comfortable for them?"
 
They do, to some degree, and that degree varies from country to country..
 
Less from Syria and Iraq for obvious reasons. 
 
There were a lot of Somali and Sudanese refugees in the KSA over the years, because they are geographically close and there are trade ties.
 
The Saudis, in particular, have tried to build a fence with Yemen over the last 20 years or so.  (That fence is in addition to the Rub-al-Khalid (The "Empty Quarter") an almost uninhabitable shifting sand desert. 
 
None of the Gulf States want more Shia believers, as the eastern part of the KSA (where most of the oil and gas are)and Bahrain (right over the causeway from the port cities of Ad Damman and Al Jubail) are majority Shia. 
 
The KSA has had a near war with Iran at least since some Saudis, apparently fired up over the fall of the Shah and the Establishment of the Islamic Republic,  tried to seize the Grand Mosque in Makkah back in 1979.    
John Minehan Added Feb 2, 2017 - 4:23pm
The Northern Renaissance in general always interested me, Durer, More and Erasmus to name a few key people.
 
The Reformation and all that came with it still shape events.   
Utpal Patel Added Feb 3, 2017 - 9:44am
The thing about the outrage over the executive order that pisses me off the most is the assertion from the Left that it’s a Muslim ban.  The list of Muslim countries who were not banned still far exceeds the amount that were.  Furthermore, a Muslim who resides in say France is not banned.  Much like the Women’s March that had nothing to do with women’s issues, the outrage over this executive order is all about anti-Trumpism.  When will the main stream media get their head out of the donkey’s ass?    
John Minehan Added Feb 3, 2017 - 9:51am
Some people have said there may be issues with the 1965 Amendment to the Immigration Law, that forbids discrimination against immigrants by national origin, but Carter and Obama both pulled visas (or slowed down review) for the same reason.
 
There are Due Process issues, but those are easier to address . . . . 
Jim Hetzer Added Feb 3, 2017 - 10:59am
The assertion that this is not a Muslim ban is in direct conflict with Trump initially calling it a Muslim ban. This administration has no regard for truth, and is creating new terms for lies.
John Minehan Added Feb 3, 2017 - 11:05am
But saying it is not a Muslim ban comports with the text of the Executive Order, liked to above, which bars "immigrant and nonimmigrant entry" to citizens of the stated countries, without regard to religion. 
Jim Hetzer Added Feb 3, 2017 - 10:26pm
Trump is incapable of understanding that when his comments are recorded he cannot deny saying what he said.  Trump called it a Muslim ban, and said it was fulfilling a promise.  After the fact, his organization denied he called it a Muslim ban.  I hereby declare his title to be clown-in-chief.  He is a sad and pitiful person.
 
John Minehan Added Feb 4, 2017 - 7:39am
It appears a Circuit Court has issued a stay of enforcement of the EO so this may be a moot point . . . .
John Minehan Added Feb 4, 2017 - 7:47am
John Minehan Added Feb 4, 2017 - 11:24am
Bill H. Added Feb 4, 2017 - 3:59pm
Have we forgotten that Trump in December of 2015 called for a “total and complete shutdown” of Muslim immigration to the U.S?
Now he is denying that this campaign pledge being carried out is not a Muslim ban.
John Minehan Added Feb 4, 2017 - 4:05pm
"Now he is denying that this campaign pledge being carried out is not a Muslim ban."
 
Possibly because it isn't.
 
The TRO was based on it being a ban on people from countries with an insufficient nexus to domestic terrorism. 
Lady Sekhmetnakt Added Feb 4, 2017 - 11:22pm
The protests against this are framed as being in support of Muslims who are being harmed by this. Where were their protests when Obama was bombing them out of existence? Isn't bombing and killing worse than a temporary ban and inconvenience? The Hillary/Obama Muslim-murdering team loved Muslims so much that they bombed them to death. 
 
http://theduran.com/photos-prove-barack-obama-hillary-clinton-nothing-love-islam/
Nothing better illustrates the hypocrisy of those protesting the Muslim ban than their silence while the Obama regime destroyed millions of Muslims. Look at the before and after-bombing photos of major cities. This is what pre-Trump Washington said was “bringing freedom and democracy to the Middle East.”
John Minehan Added Feb 5, 2017 - 8:39am
Jeff Michka Added Feb 5, 2017 - 12:40pm
Billy Kamps tries to write: Having said that, what was done was clumsy, and generated unnecessary backlash against Trump.  He acts as though he doesnt care, but eventually he will learn that - What possible evidence is there suggesting Trump can "learn"? And how many Americans have died in the US from hands from any of the countries "banned" from entering US?  How many domestic deaths were caused by citizen from Muslim countries not affected by this order, like Saudi Arabia? Thousands on 9/11.  Despite the Bush admin telling the now-Trumpeters they were really Iraqis, Saudi and Emerites didn't make it into the ban list.  Hmmm.  So we are worried about keeping America safe for Trumpists:  "Duck, suckers, it's raining aircraft out here."
John Minehan Added Feb 5, 2017 - 12:54pm
"And how many Americans have died in the US from hands from any of the countries "banned" from entering US?"
 
How many have died in the Dar-al-Islam at the hands of Somali-American Suicide bombers? 
 
How many Americans were injured by Somali-American knife wielding assailants in the Mall of the Americas and  Ohio State attacks?
 
How choate were the Plans of Iraqi refugees to commit terrorist acts that prompted the Obama Administration to slow down a refugee program in 2011?
 
How cooperative are failed (or failing) states in screening refugees, as compared to the KSA and Pakistan, which have cooperated since 2001?   
Jeffry Gilbert Added Feb 5, 2017 - 3:34pm
The McCarran-Walter Act of 1952, duly passed by Congress, signed by Harry Truman and last used by Jimmy Carter in 1979 to prevent Iranian immigration.  How is it possible a judge from Seattle can rule in direct opposition to law already on the books and duly made as law?
John Minehan Added Feb 5, 2017 - 4:12pm
By getting the law wrong. It happens . . . which is why there are Appellate Courts . . . .
John Minehan Added Feb 5, 2017 - 4:14pm
The judge is assuming there is not a sufficient nexus between the seven Countries and domestic terrorism to date.  As I said in my post, the issue is that most of the seven countries are failed states to a greater or lesser extent, though. 
Jeffry Gilbert Added Feb 5, 2017 - 4:51pm
It appears this Robart is an activist judge what with his work at Evergreen Legal Services.
 
His confirmation hearing testimony: "I was introduced to people who in many times felt that the legal system was stacked against them or was unfair,"  
 
"And one of the things, I think, that my time there helped accomplish was to show them that the legal system was set up for their benefit and that it could be, if properly used, an opportunity for them to seek redress if they had been wronged."
 
His sympathies clearly lie with refugees. 
 
This guy needs to go. 
Eileen de Bruin Added Feb 6, 2017 - 10:18am
Jeffry, law is supposed to be impartial. If his sympathies lie with Trump's world view the outcome should be the same. Impartiality is just that. If his sympathies lie with the refugees why should he have to go? You are implying that fascism should have the power because its sympathies lie not with refugees.
Jeffry Gilbert Added Feb 6, 2017 - 10:50am
Your characterization that a temporary ban on immigrants from the countries denoted in the EO or the office of the issuer as fascism/fascist qualifies you as unworthy of my response. 
 
That said, it should be impartial whatever the personal bias of the jurist.
 
He's clearly unable to maintain impartiality so he has to go. 
John Minehan Added Feb 6, 2017 - 1:18pm
"The world must construe according to its wits; this court must construe according to the law."  Robert Bolt, A Man for All Seasons 
Jim Hetzer Added Feb 6, 2017 - 10:30pm
There has NEVER been an incidence of violence from a Syrian refugee. Each time the U.S. kills women and children in the pursuit of ISIS leaders there are many new recruits to ISIS.  We should be funding Food for Peace instead of bombing innocent civilians.  
John Minehan Added Feb 7, 2017 - 1:25pm
But there have been several in the EU, which took many more refugees than we did . . . . 
 
"We should be funding Food for Peace instead of bombing innocent civilians."
 
Sort of.  We should even more Civil Affairs/Civil Military Relations ("CA/CMO") operations than we do and we should be more even effective and efficient in kinetic operations than we are.