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Cutting Through The Hyperbole On Trump's Executive Order On Immigration

06/02/2017 12:39 GMT | Updated 06/02/2017 12:40 GMT
Jonathan Ernst / Reuters

In the aftermath of President Trump's Executive Order restricting any form of Immigration from seven targeted mainly Muslim countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen), the fractures that were in America over Trump's election have gone truly global. Here in Britain, there is an online petition with over one million signatures calling for the Prime Minister to withdraw her invitation to President Trump for a State Visit later this year. Notwithstanding the double standards on President Trump versus let us say the Chinese or the Saudis who have had state visits (yet have regimes whose human right's records are somewhat questionable to put it mildly), I thought it was worth cutting through the hyperbole and rhetoric.

First, the rationale for excluding nationals of these seven countries is that is impossible to screen such people for extremist ties - as acknowledged to by both Obama's Director of the FBI and Secretary of Homeland Security. This is because either the host government will not cooperate with USCIS investigators (Iran), or the country lacks a functioning government capable of providing such information. Every other country from which anyone emigrates from, provides this information to USCIS. If an individual from say Sweden must undergo a background check to come to the US, it's absurd to argue that someone from, Somalia, for example, can come to the US without a similar background check.

Secondly, individuals who are not citizens have no constitutional right to enter the United States. Indeed, according to the US Constitution non-citizens have no rights beyond the border of the United States.

Thirdly, the President has broad authority to bar any non-citizen from entering the US for any reason or no reason at all (Immigration & Nationality Act of 1965, section 212(f)). This includes country of origin and even religion. As the Constitution does not apply, the 1st Amendment's Freedom of Religion does not either.

Fourthly, the Directive prioritising admitting refugees who are "religious minorities" is neither unconstitutional nor unprecedented. The Lautenberg Amendment passed in 1990 granted special refugee status to persecuted religious minorities of the Soviet Union, primarily Jews. This law allowed nearly 400,000 Jews to emigrate to the US, while keeping in place restrictions for Christian-majority Russians, who were also suffering amidst the collapse of the Soviet Union. This distinction was perfectly constitutional.

Fifthly, it is worth noting that President Obama also suspended processing visa applications for Iraqi refugees for six months in 2013. President Carter did the same for Iranians in 1979, and President Roosevelt banned all Japanese entry during World War II. All were deemed legal and constitutional exercises of presidential power.

All that being said, the Executive Order was without doubt poorly executed. The Trump Administration should have followed President Obama's 2013 policy on immigration from Iraq, and simply suspended the issuance of new visas until proper vetting could be implemented in those countries. This would have left alone permanent residents, Green Card holders, who have already been thoroughly vetted (and were subsequently excluded from the Executive Order after the initial furore), and more importantly, not left hundreds of people stranded in legal-limbo in airports. One couple I heard about had left their two young children with the neighbour's in the US while they travelled to Iran for a family event but were stranded in Dubai unable to return home.

Yes, Trump has delivered on an election promise and has the overwhelming support of those who elected him. However, the same end of suspending unvetted immigration could have been quietly accomplished through a simple bureaucratic delay in processing new visas. But I guess President Trump doesn't do subtle and we are going to have to get used to the President using a sledge hammer to crack walnuts.