US and Canadian Immigration Lawyer Andy Semotiuk: Chaos. So far, that is the only word that comes to mind in describing the Trump immigration efforts. Thousands of lives have been affected by his errant steps, but they have been protected by U.S. courts that have struck down his executive orders.
The most recent incarnation of Trump’s anti-immigrant rhetoric and his new ‘take charge’ presidential persona, was his March 6, revised executive order invoking a 120-day ban on refugee resettlement and 60-day travel bar on citizens of six predominantly Muslim countries. That order was struck down by a Hawaiian federal court judge who ruled that it was an unlawful expression of the President’s discriminatory anti-Muslim campaign pledge.
Could it be, however, that President Trump has a few aces up his sleeve that he will use in appealing this court ruling and the others that have blocked his efforts so far? Have we all misjudged him, as many did since he first declared his intention to run for President?
Trump Immigration Orders
What the President can argue in support of his most recent executive order is that it was former President Obama, and not him, who, prompted by concerns about terrorism, put Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen on a list making travel into the United States from those countries more difficult. What is more, Trump could argue that if his purpose was really to block Muslims from the United States, his ban would have included citizens from countries such as Pakistan or Afghanistan, not to mention others that are predominantly Muslim. Yet the ban was not that encompassing.
In a legal memo, law professor Pratheepan Gulasekaram, of Santa Clara University, set out some of the other argumentsTrump’s administration could use in support of the latest executive order.
For one, the Immigration and Nationality Act provisions cited by Trump in his executive order do grant the president broad power to deny entry to classes of non-citizens. It’s a fact that six previous Presidents have banned immigrants from entering the United States, including immigrants from specific countries. The question is, does his new order too broadly extend its reach in the face of due process and protection against religious discrimination? Is the ban both over-inclusive in barring too many nationals from countries that are not national security concerns, which has been the argument to date against the nationals included in the ban, and under-inclusive in not excluding citizens of countries with people interested in harming the U.S., such as for example, individuals from Afghanistan, Saudi Arabia, Pakistan or North Korea?
Removing Iraq from the list supported Trump’s argument that this revised order is based on an assessment of actual national security concerns. The revised order – by providing facts about the political situation in those countries on the list, taking out the preference for religious minorities, and not especially exempting Syrian refugees –may have surmounted the religious discrimination objection. Just how long can campaign rhetoric be a basis for striking down Presidential decisions? Isn’t President Trump entitled to argue that he has refined his views since those campaign days, given his briefings as the new President and that his views have changed since those early days?
Limiting the application of the immigration ban to those who do not have U.S. citizenship, dual nationalities, green cards or American visas has strengthened Trump’s defense against the due process challenge. Syrian refugees are now no longer specifically targeted, although they are included in the general ban of refugee admissions for 120 days. Trump can argue that 120 days are not forever and are reasonably necessary to reset the immigration processing rules for the sake of the national security of the United States. While the Refugee Act requires the President to consult with Congress before he enacts refugee policy, it is not clear that Trump failed to consult with Congress before suspending refugee admission and lowering the number of refugees that can apply. No doubt he will claim he met widely with Congressional leaders before making his decision and thus fulfilled this obligation.
These arguments need to be addressed by the Supreme Court of the United States to determine just how far President Trump can go using the power of executive orders. In the meantime, however, the checks and balances of the U.S. Constitution and the American system of government are at work limiting the scope of Trump’s actions while protecting the rights of those affected. So far President Trump has been stymied by these court rulings and chaos has resulted. We can expect that he will resort to other measures to limit immigration since it appears he has decided to make immigration policy the most prominent battleground for his administration’s political reform agenda.