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 idea of religious freedom.  America was literally founded on the idea that people are free to come and practice their religion, however they wish.  The Constitution enshrines this idea.  Placing a religious test on entry into the United States has no basis in our culture and politics.  The suggestion otherwise should be rejected out of hand.

The Executive Order not only threatens religious freedom, but also goes to the heart of American history as a nation of immigrants.  Almost everyone reading this column is descended from immigrants.   “Give me your tired, your poor  . . .”   This is what makes America Great.  Really, if you don’t get this, I feel sorry for you.  As Lin Manuel-Miranda writes, “Immigrants.  We get the job done.”

There is a pragmatic element to this, as well.  Many terrorist organizations want to believe that they are engaged in a religious war against the West.  This Executive Order has now become “Exhibit A” in their propaganda videos.  It is not hard to see that suggesting Muslims throughout the world that that they are presumptively terrorists is likely to foster hostility and resentment that ISIS and other can use to help radicalize adherents both abroad and in the United States.

Update:  Republican Senator Sasses just put out a statement supporting this view:  “If we send a signal to the Middle East that the U.S. sees all Muslims as jihadis, the terrorist recruiters win by telling kids that America is banning Muslims and that this is America versus one religion.”

What about the litigation?

A number of organizations, including the ACLU and Yale Law School, have filed a lawsuit challenging the Executive Order.  I have put a copy on my Firm’s website:  http://www.engelandmartin.com/wp-content/uploads/2017/01/trump-lawsuit.pdf

The plaintiffs in this case could not be more sympathetic. One of the men, Hameed Khalid Darweesh, was traveling on an Iraqi special Immigrant Visa and had worked as an interpreter for our Army in Iraq. The other man, Haider Sameer Abdulkhaleq Alshawi, was lawfully traveling to America to join his wife and 7-year-old son, who are lawful permanent residents residing in Houston, Texas.  They were both prohibited entry at JFK airport.  The New York Times has this great color:  “Inside the airport, one of the lawyers, Mark Doss, a supervising attorney at the International Refugee Assistance Project, asked a border agent, ‘Who is the person we need to talk to?’  ‘Call Mr. Trump,’ said the agent, who declined to identify himself.”

Other organizations, are also preparing litigation to be filed, on Monday, reportedly.

I would expect the litigation to move fairly quickly.  The judge assigned to the case can decide to issue a preliminary injunction prohibiting the enforcement of the Executive Order.  The case would then proceed to the Court of Appeals and, eventually, could end up in the Supreme Court.

Paul Ryan has said the same thing:

What can I do?

Keith Ellison has suggested more rallies and protests.  Crowds are gathering at JFK airport to support this who have been unlawfully detained.  We have not seen anything in Ohio, yet.  But keep an eye at the Cleveland and Columbus airport and message Plunderbund if you know of anyone who has been detained and needs assistance.

Really can’t argue with protests.  The Women’s’ March was effective in getting Trump’s attention.

The most important thing we as citizens can do is to put pressure on our representatives.  Mike Pence is on record as saying that a ban on immigration by Muslims is wrong and unconstitutional.

Ohio’s representatives need to be put on record about whether or not they believe the Executive Order is constitutional.  My experience as a trial attorney is that  if you ask them an open question, they will respond with meaningless platitudes and dodge.  Instead, you need to ask a series of simple “yes or no” questions. Follow this process:

  1. Go to: http://act.commoncause.org/site/PageServer?pagename=sunlight_advocacy_list_page
  2. Type in you zip code to get the contact information for your representatives.
  3. Contact them. Don’t make a speech or even express an opinion.  Just ask a couple of questions and keep track of the answers:

Do you believe that the Trump Executive Order on Immigration is constitutional?

Do you believe that there should be a religious test for entry into the United States?

Do you believe that entry into the United States should be restricted on the basis of national origin?

Call.  Email.  Tweet at them.  Post these questions on their Facebook pages.  Make them take a stand. If you get a response please post in the comments or forward to Plunderbund and on Twitter/Facebook.  I am sure Joe and the team want to keep track of what our Republican representatives are saying on this issue.

Joshua Adam Engel is a civil rights attorney practicing in Mason and Columbus as a partner at Engel & Martin, LLC.  He is a 1995 graduate of the Harvard University Law School and served as prosecutor in Ohio and Massachusetts.  Find Josh on Twitter at:  @joshuaadamengel.

 

 

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