Sunday, January 29, 2017

FAQ: The Trump Executive Order On Immigration

FAQ: The Trump Executive Order On Immigration:

FAQ: The Trump Executive Order On Immigration

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FAQ:  The Trump Executive Order on Immigration
By:  Joshua Adam Engel
It is impossible to overate how bad Donald Trump’s Executive Order on Immigration is for America and the world.
  • The Executive Order undermines some fundamental American Constitutional values and brings us closer to authoritarianism.
  • The Executive Order is a rejection of decades of American leadership in humanitarian and rejects the lessons of the holocaust.
  • The Executive Order will only embolden and strengthen our enemies.
What is the Executive Order?
The Executive Order makes a number of important changes to our immigration policy.  The two most important are:  (1) a suspension of the admission of all refugees for 120 days; and (2) the suspension of immigration from several predominantly Muslim countries: Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, for 90 days.
Why is Trump doing this?
The Executive Order claims that that the changes are necessary to protect America from another terrorist attack.  But that is a lie.   There is no real evidence that the procedures previously had resulted in any terrorism in the United States. It is hard to draw any conclusion other than that the Executive Order is motivated by anti-immigrant and anti-Muslim animus.  Proof: the Executive Order specifically mentions September 11, 2001. Even though September 11, 2001 is mentioned, the Executive Order does not restrict immigration from the nations where the 9/11 attackers were from, such as Saudi Arabia.  More proof: Trump told the Christian Broadcast Network that “persecuted Christians will be given priority over other refugees seeking to enter the United States.”
Really, anyone who paid attention to the campaign throughout 2016 should not be surprised that Trumps and his supporters – who trafficked in White Supremacist rhetoric during the campaign – would adopt a policy that is blatantly discriminatory.  This is, after all, the same Trump show shortly after the November 2015 terrorist attacks in Paris, told Fox News that the U.S. government should close mosques where “some bad things are happening.”
Can you tell me something even worse?
  1. The Executive Order was released on Holocaust Remembrance Day. If you want to feel terrible, follow the St. Louis Manifest on Twitter.  @Stl_Manifest,

The St. Louis was a ship with approximately 900 Jewish refugees who came to Miami.  Our government turned them away, in part because of a belief that the Nazis might smuggle spies and saboteurs in among the Jewish refugees.  254 of the passengers were later killed in the Holocaust.
Is it totally fair to connect these things.  My first day as a prosecutor I was taught to “never believe in coincidences.”  The White House put out a statement on the observance of Holocaust Remembrance Day, but failed to mention the 6 million Jews who were exterminated by the Nazis.  Is an inference of hostility to non-Christian religions fair from this omission?  Perhaps only if you consider that Trump’s campaign was criticized as especially anti-Semitic.
What about people who are legally allowed to enter the country?
Even permanent U.S. residents – who have lived in this country and have green cards – are subject to the Executive Order.  The New York Times reports that students and professors from countries on the banned list have been prohibited entry. “Human rights groups reported that legal permanent residents of the United States who hold green cards were being stopped in foreign airports as they sought to return from funerals, vacations or study abroad — a clear indication that Mr. Trump’s directive is being applied broadly.”  To be clear:  these are people who have been legally living in, or cleared to enter, the United States; these people are being denied entry in the complete absence of any evidence that they are terrorists.
Is this Constitutional?
In a word:  no.
Start with the fact that those seeking to immigrate to the United States are protected by the Constitution.  This is settled law despite the fact that suggesting otherwise is a favorite talking point of the right.  [And, no, I am not linking to Glenn Beck or Laura Ingraham; Google this yourself.]  The U.S. Supreme Court in 2001 held that the 14th Amendment’s due process guarantees applies to all aliens in the United States whose presence maybe or is “unlawful, involuntary or transitory.”  Zadvydas v. Davis.  The Zadvydas case built on prior decisions holding that undocumented persons, for example, are entitled to the Equal Protection guarantees of the Constitution.
A ban on Muslims entering the United States violates the First Amendment’s guarantees of freedom of religion and the Fifth and Fourteenth Amendment’s guarantees of Equal Protection and Due Process.  Simply:  the Constitution prohibits the government from favoring or not favoring a person or group of people based on religion or other innate characteristics.  (Note, this is distinct from taking religion into account, such as considering whether someone is facing religious persecution in their home country as part of an asylum request.  This is perfectly acceptable so long as all religions are treated equally.)
Doesn’t the President have special powers to control immigration?
Trump seems to think that he can avoid the Constitutional problems by saying he is not banning the entry of Muslims, just people from certain nations.  Of course, a Court will have to decide if this is a mere pretext.   The law often recognizes that non-discriminatory actions are often a cover from real discriminatory motives or effects.  There is good evidence to suggest that that Trump has effectively barred Muslims from entering the United States, while favoring the entry of Christians.
The President’s does have significant powers to control immigration, but those are constrained by the Constitution and, in particular, certain statutes.  One of the restrictions specifically prohibits restrictions on the entry of immigrants based on their country of origin.  David Bier from the Cato Institute published a great piece on how various immigration laws prohibit the Trump Executive Order.  It is totally worth a read.  The basic idea is that Congress outlawed such discrimination against immigrants because there has been a “long and shameful history in this country of barring immigrants based on where they came from.”  Bier explains that the Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin
Why is this bad for America? 
We often speak of fundamental American values.  So often that the term can lose meaning.  But not here.  No value is more fundamental to America than the FAQ: The Trump Executive Order On Immigration:
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