Visas: Not everywhere you want to be | FRAY 001

Trump’s Executive Order on Travel Restriction Now in the Courts’ Hands

President Trump faces the first legal challenge of his constitutional authority as he holds his ground on the visa-related Executive Order.

The Facts:

• On January 27, 2017, President Trump signed an Executive Order entitled: Protecting The Nation From Foreign Terrorist Entry Into The United States. The Order asserted that it is the responsibility of the United States to “ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles” (White House).
• The Order focused on restricting travel for foreign nationals of countries previously identified as “Countries Or Areas Of Concern” by the Obama Administration’s DHS in 2016. Those countries are Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen. The Obama Administration identified these countries in order to revise the Visa Waiver Program and to require nationals of these seven countries to acquire a visa for travel to the US (DHS). The Order also halted all refugee acceptance for 120 days while the process is reviewed, and halted all refugee acceptance from Syria indefinitely. Lastly, it prioritized refugees belonging to regional minority religious groups and cut the total number of refugees the United States will accept in 2017 from President Obama’s proposed 110,000 to 50,000 (White House).
• Starting on January 27, the order functionally barred entry into the US for any person traveling on a passport from those seven countries, including Permanent Residents (Green Card holders). Without clarification from the DHS, and in defiance of stays issued by the courts, Customs and Border Patrol in several airports were holding or sending back these foreign nationals and denying information to members of Congress (Washington Post).
• On January 29, the DHS clarified that Permanent Residents would be reviewed on a case-by-case basis for exemption (DHS), and the State Department later clarified that most existing visas, about 60,000 in total, from those seven countries have been cancelled (Fox News).
• In response to a challenge brought by the states of Washington and Minnesota, Federal District Judge James Robart put a temporary restraining order on the visa and travel restriction elements of the EO (Seattle Times).
• The Trump Administration appealed and asked the Court of Appeals for the Ninth Circuit to stay the restraining order while the appeal proceeds. In a 3–0 decision, the Court of Appeals denied the Administration’s stay request (US Courts) meaning the travel restriction elements of the EO remain out of force. The White House has indicated it intends to continue the appeal process to reinstate the Executive Order in full (Twitter, San Francisco Chronicle).

And that’s where we stand today. Now, our opinion writers weigh in.

PROGRESSIVE OPINION

by Alexis Cole

No executive power is immune to constitutional scrutiny. President Trump’s executive order restricting travel for visa holders and refugees inspired swift legal action following chaos for families, attorneys, and agencies scrambling to interpret the Order with little guidance from the Administration.

The de facto “Muslim ban” violates not just the rights of the legal U.S. persons detained under it, but also the constitutional principle that one religion cannot be favored over another.

The Order violates the Establishment Clause, under precedent precluding preferential treatment of one religious denomination over another. In a plain violation, the refugee portion of the Order, in effect prioritizes Christian refugees. The Order begins to fulfill President Trump’s explicit campaign promise that he would seek a “Muslim ban,” but does so without naming Islam directly. However, surface-level neutrality is insufficient, as the court must “distinguish a sham secular purpose from a sincere one.” The sham secular purpose here clearly targets Muslim immigration (as confirmed by Rudy Giuliani).

Permanent residents and visa-holders seeking re-entry have a due process right to a hearing prior to deportation. Permanent residents who have already endured the extensive, often years-long vetting process were detained without access to counsel (despite a court order) and even coerced into signing paperwork relinquishing their hard-won legal status. They were then unceremoniously deported without any semblance of a hearing, directly violating their Constitutionally protected right to due process.

The executive branch may use its broad power in setting national security policy, but must not violate the Constitution in doing so; as such, this ban cannot stand.

CONSERVATIVE OPINION

by Kevin Hedrick

President Trump’s actions over his first few weeks in office have made it clear that he intends to keep his campaign promises. His EO on “terrorist entry” makes good on a promise dating back to his famous “ban on Muslims” comment in December 2015. It was arguably a motivator for his presidential win, despite the absurd idea of an actual ban on Muslims.

We are missing a key point as we’re distracted by the legal challenge — the EO doesn’t keep us safe!

1. The EO does not ban persons who’ve recently traveled to these countries. The Paris attack, which inspired the change in VWP legislation, was committed by citizens and foreign nationals who had recently traveled to Iraq/Syria to fight and train with ISIS.
2. We’ve been attacked by foreign nationals of many other countries. True protection would probably include more nations.
3. The fear of terrorism has been a political motivator for more federal power. In reality, the odds of being victim to a terrorist attack are practically zero.

Despite these concerns, the president’s actions are constitutional. It has been established for two centuries that immigration has followed plenary power doctrine within the legislature and to the executive branch through delegation. The previous five presidents have all issued travel bans under the same legislation and with the same constitutional authority — with no legal challenge. Judge James L. Robart seized power that is not his to wield, and his order should have been ignored.

Solutions to our concerns are available and it’s Congress’s job to implement them:

1. Congress can pass new legislation limiting the authority given to the president on immigration matters.
2. Congress should begin the process of judicial review and strip the court’s power to rule on immigration under Article III Section II.
3. Congress, being the check on the judiciary, should impeach any federal judge that plays these types of games.

More to Broaden Your Mind and Widen Your Perspective

To Read:

Between the World and Me by Ta-Nehisi Coates
The MacArthur “Genius” Fellow pens a letter to his son about the intersection of race and America, transforming his established political erudition into a profoundly personal tale.

To Watch:

Restrepo (Documentary) a film by Sebastian Junger and Tim Hetherington
Filmmakers follow an Army platoon into the harshest area of Afghanistan and present the stark humanity of modern warfare.

To Listen:

Did China Eat America’s Jobs? by Freakonomics
An economist-centric view of the debate around America’s loss of manufacturing jobs, focusing on the two primary culprits: China and domestic automation.

To Do:

Find Your Representative | Find Your Senators
While you’re here, go to these sites, find the phone numbers for your Senators and your Representative in the House, and save them to your phone so next time you want to let them know how you feel, you’ve got their numbers handy.

*Some links in the Broaden Your Mind section may contain affiliate codes.