For all his campaign-trail bombast about Muslim immigration to the United States and bluster about its supposed mortal perils, President Trump’s draft executive order to reduce it is far more limited than many expected (and some feared) it would be. Trump initially called for a “total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on” in December 2015 to widespread criticism. Successive campaign statements pared down that blanket ban on an entire religion’s adherents to “extreme vetting” of Muslim individuals.
A draft executive order published Wednesday by the Huffington Post didn’t come close to fulfilling the original scope of the president’s promises, but it still represented a sharp break from longstanding U.S. practices. If implemented, the Trump administration’s order would suspend the entire U.S. Refugee Admissions Program for 120 days while security measures are reviewed and ban Syrian refugees from U.S. entry indefinitely. It would also temporarily block entry visas from seven countries—Iraq, Syria, Iran, Sudan, Somalia, Yemen, and Libya—for 30 days as part of a broader security review of visa-admission programs, after which permanent visa bans could be enacted for those countries and others. The order also includes a variety of other security-related measures ranging from planning for safe zones in Syria and expediting biometric exit-entry screening for U.S. travelers.
To understand the order’s scope and potential impact, I spoke with Jennifer Gordon, a Fordham University law professor who specializes in immigration law. Our conversation has been lightly edited for style and clarity.
Matt Ford: If I'm a Syrian refugee in a camp in Turkey, what should I expect if this draft executive order becomes official?
Jennifer Gordon: The current situation for Syrian refugees awaiting processing is that processing will come to a halt. There may be continued procedures within the camps, but as to admissions, the executive order stops them. There's also a 120-day suspension of the U.S. Refugee Admissions Program for everybody, and during that period, no refugees are going to be admitted unless there's a special exception made.
Ford: How many refugees does the U.S. typically admit in a year?
Gordon: That depends on the president's designation. The numbers vary in recent years, but President Obama last year designated the number at 110,000. This executive order cuts that number to 50,000. 50,000 admissions a year is the lowest number since the Refugee Act of 1980. It's never been lower than 70,000, including in the years following 9/11, so that is a historic low in this executive order. The numbers have hovered since 9/11 around 70,000 to 80,000 admissions. President Obama had increased the numbers, but this is not just a cut in those numbers, it's a cut that's far out of line with refugee admissions for the past 30-plus years.
Ford: I noticed that there's also prioritization for refugees who face some sort of religious persecution after the 120-day period ends. Is that something that's unusual?
Gordon: Congress has acted at times to give priority to particular groups of refugees who are religious minorities, so that's not unheard of. And some of those priorities are already in effect, but this seems broader than the ones that are already in place.
Ford: Does Trump have the legal power to do what he's planning to do with this order under current U.S. law?
Gordon: Current U.S. law gives a president the power, in consultation with Congress, to set numbers and geographic areas for refugee admissions, so this doesn't appear to be out of line with that.
With regard to countries for which he's suspending the issuance of visas, there is a provision in the immigration laws that allows a president to make exactly such designations. The provision says that "whenever the president finds that the entry of any aliens, or the entry of any class of aliens, into the United States would be detrimental to the interests of the United States, he may by proclamation and for such period as he shall deem necessary, suspend...their entry."
So the question is would a challenge to that provision, particularly in the form that this was religious discrimination against majority-Muslim countries, would that stand? And that seems unlikely, given the legal standard under which the president's immigration actions are reviewed.
Ford: What legal standard would that be?
Gordon: So there's a doctrine called the plenary-power doctrine, it's been around for over 125 years, and it says that in particular in terms of who has a right to enter the United States, courts essentially do not review the president and Congress's actions for constitutionality. That's a very unusual carve-out.
Thinking about Supreme Court decisions in this area, given that if I'm reading the executive order right, Trump has limited the exclusion to seven countries state sponsors of terrorism list and in the appropriations act, it's not a particularly close case. If he had listed a larger set of countries and all the countries were predominantly Muslim, there might be some challenge about discrimination on the basis of religion, but again, the courts really barely look at the Constitution when it comes to decisions about who will be admitted to the country.
Ford: We saw that case in the Seventh Circuit last year shortly before the election where Indiana lost its bid to keep out Syrian refugees from the state. So it doesn't sound like there would be a chance for a similar victory for refugee groups in a similar case like this?
Gordon: Just to be clear, we're talking about two different things. Section 3 of the executive order is not about refugees, it's about any kind of immigration: a tourist visa, a visa because you are from Iraq and you are married to a U.S. citizen—all of those visas are suspended by this executive order. So that's a different area of law than refugee law. Refugee law is even clearer that the states have no power to set policy. That policy is entirely with the president and Congress.
Ford: If I remember correctly the Seventh Circuit had blocked Indiana from implementing its plans to cut off funding on the basis it would discriminate on the basis of national origin, but from what it sounds like you're saying, a legal challenge against these programs here—either the refugee or the visa program—would be unlikely to succeed?
Gordon: That's my view, yes. As written in this executive order.
Ford: There’s some precedent for tinkering with classes of refugees. Are there any historical examples of presidents using this power to unilaterally exclude an entire class of people from visas?
Gordon: It's certainly not unheard of. Section 212(f) of the Immigration and Nationality Act allows presidents to suspend entry of “any class of aliens” when he finds that their admission "would be detrimental to the interests of the United States." Trump's executive order goes well beyond the actions contemporary presidents have taken under this provision, which have most often been limited to a particular category of people in a given foreign country.
For example, President Obama forbade entry to individuals who had “facilitated computer or network disruption that could assist in or enable serious human rights abuses by or on behalf of the government of Iran and Syria;” President Bush barred supporters of the Mugabe government in Zimbabwe. I'm only aware of two contemporary examples where presidents issued a broader ban, each affecting only a single nation: President Carter's order in April 1980 halting visas to Iranians, and President Reagan's 1986 order barring most Cuban nationals.
Ford: The draft also includes a passage that suggests the Trump administration might also seek to try to block people on the basis of—ask incoming immigrants about their views on gay rights, on gender relations, on things like that. Is that unusual, and are there any sort of precedents for that?
Gordon: Well, at the time of the Cold War, there was a great deal of attention by the government to whether somebody who was a would-be immigrant was a member of a communist party, and people were excluded based on their ideological beliefs. So in that sense, there's a precedent. But being a member of a party is a different sort of inquiry than requiring people to adhere to a particular set of values. And values, of course, are implicit in the questions people are asked during the immigration process. But certainly in recent years there's no precedent for an explicit values test for entry.
Ford: What’s the significance, if any, of the order’s clause about biometric entry-exit tracking?
Gordon: Section 8 of the executive order orders the Secretary of Homeland Security to expedite the completion and implementation of a biometric entry-exit tracking system for all travelers. That may sound like a great new idea, but it was 1996 that Congress first passed and President Clinton then signed a law mandating this. Congress in total has passed seven laws mandating this. The Department of Homeland Security has not even presented a plan to Congress for its implementation. And so this really is not a new idea, and this doesn't address the obstacles that have kept entry-exit tracking from becoming a reality.
Ford: What kinds of obstacles would those be?
Gordon: They run from the costs of such a system to customs—the Customs of the United States, I mean—to airport architecture. We don't, in the United States, as some other countries do, have a—you don't have to pass through—you go through airport security and you get on your plane. There's not a point where you have to hand in an exit card or report to immigration that you are departing. And countries that have such a system have built airports that have places where this takes place. U.S. airports are not built that way. So even something as concrete as airport architecture has been an obstacle to implementing such a system.
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