1/29/2017 - Matt Vespa Townhall.com
This
weekend saw the institutional Left go into another frenzy over President Donald
J. Trump’s executive order on immigration, specifically the so-called Muslim
ban. It’s unconstitutional. It’s illegal. It’s not who we are. Rabble. Rabble.
Rabble.
Now,
there is a legitimate criticism of the executive order regarding green card
holders, which Lawfare Blog ripped into over the weekend. Yet,
they do admit that the president has vast power to enact this “malevolent”
order:
…yes, the order is
malevolent. But here’s the thing: Many of these malevolent objectives were
certainly achievable within the president’s lawful authority. The president’s
power over refugee admissions is vast. His power to restrict visa issuances and
entry of aliens to the United States is almost as wide.
Today
White House Chief of Staff said that the order would not apply to green card holders.
At
National Review, lawyers Andrew McCarthy and Dan McLaughlin wrote about how the
orders were legal and not all that much of a departure from Obama’s immigration
policy regarding refugees, visas, and national security—though McLaughlin added
that he was troubled that the Trump administration was deluding America’s
tradition of taking in refugees and granting asylum to those who have been persecuted
for a variety of sociopolitical reasons.
At
the same time, he noted that the Obama administration also discriminated
against Christian Syrian refugees, ended the wet foot, dry foot policy with
Cubans fleeing their communist hell hole, and stopped processing Iraqi visas
for six months in 2011. Oh, and some of those visa applicants served as
interpreters for the U.S. military and provided intelligence to our forces. But
a Democrat was in the White House, and as McLaughlin cited, Cubans are more conservative-leaning
voters, therefore not a priority for liberals, nor are persecuted Christians in
the Middle East. It’s not worthy of liberal outrage, but now with Republicans
back in power—everything is triggering.
Guy
will go further into this tomorrow, but McLaughlin also mentioned that this
isn’t a “Muslim ban.” Only seven of the world’s 50 majority Muslim countries
are on the list, (Indonesia is the world’s most populous Muslim country;
they’re not on the list) with three of them being pegged by the State
Department as state sponsors of terror.
Yet,
let’s back to the legality of it:
Even
more ridiculous and blinkered is the suggestion that there may be something
unconstitutional about refusing entry to refugees or discriminating among them
on religious or other bases (a reaction that was shared at first by some
Republicans, including Mike Pence, when Trump’s plan was announced in December
2015). There are plenty of moral and political arguments on these points, but
foreigners have no right under our Constitution to demand entry to the United
States or to challenge any reason we might have to refuse them entry, even
blatant religious discrimination. Under Article I, Section 8 of the
Constitution, Congress’s powers in this area are plenary, and the president’s
powers are as broad as the Congress chooses to give him. If liberals are
baffled as to why even the invocation of the historically problematic “America
First” slogan by Trump is popular with almost two-thirds of the American
public, they should look no further than people arguing that foreigners should
be treated by the law as if they were American citizens with all the rights and
protections we give Americans.
Liberals are likewise on both unwise and unpopular
ground in sneering at the idea that there might be an increased risk of radical
Islamist terrorism resulting from large numbers of Muslims entering the country
as refugees or asylees. There have been many such cases in Europe, ranging from
terrorists (as in the Brussels attack) posing as refugees to the infiltration
of radicals and the radicalization of new entrants. The 9/11 plotters, several
of whom overstayed their visas in the U.S. after immigrating from the Middle
East to Germany, are part of that picture as well. Here in the U.S., we have
had a number of terror attacks carried out by foreign-born Muslims or their
children. The Tsarnaev brothers who carried out the Boston Marathon bombing
were children of asylees; the Times Square bomber was a Pakistani immigrant;
the underwear bomber was from Nigeria; the San Bernardino shooter was the son
of Pakistani immigrants; the Chattanooga shooter was from Kuwait; the Fort Hood
shooter was the son of Palestinian immigrants. All of this takes place against
the backdrop of a global movement of radical Islamist terrorism that kills tens
of thousands of people a year in terrorist attacks and injures or kidnaps tens
of thousands more.
There are plenty of reasons not to indict the
entire innocent Muslim population, including those who come as refugees or
asylees seeking to escape tyranny and radicalism, for the actions of a
comparatively small percentage of radicals. But efforts to salami-slice the
problem into something that looks like a minor or improbable outlier, or to
compare this to past waves of immigrants, are an insult to the intelligence of
the public.
Oh
wait—what about the Immigration and Nationality Act of 1965 (aka Hart-Cellar
Act)? Doesn’t that make Trump’s executive orders unconstitutional? No. As
McCarthy noted, Hart-Cellar was due to removing the skewing of immigration quotas away
from Western European nations. This order is being issued as a national
security priority. Additionally, there is no overreach with these orders, as
cited in the Constitution and the Supreme Court. McCarthy goes into a bit of
history before digging into the legality of the order, citing U.S. v.
Curtiss-Wright as judicial precedent for the primacy of the executive over
Congress in realm of international relations.
“If
there is arguable conflict between a presidential policy and a congressional
statute,” writes McCarthy. “The president’s policy will take precedence in the
absence of some clear constitutional commitment of the subject matter to
legislative resolution.”
Also,
the list of nations in the order was selected from the Obama White House.
They laid down the groundwork:
Cato
Institute’s David J. Bier claims the temporary suspension is illegal because,
in his view, it flouts the Immigration and Nationality Act of 1965. This
contention is meritless, both constitutionally and as a matter of statutory
law.
[…]
Mr. Bier asserts that Trump may not suspend the
issuance of visas to nationals of specific countries because the 1965
immigration act “banned all discrimination against immigrants on the basis of
national origin.” And, indeed, a section of that act, now codified in Section
1152(a) of Title 8, U.S. Code, states that (with exceptions not here relevant)
“no person shall receive any preference or priority or be discriminated against
in the issuance of an immigrant visa because of the person’s race, sex, nationality,
place of birth, or place of residence” (emphasis added).
Even on its face, this provision is not as clearly
in conflict with Trump’s executive order as Bier suggests. As he correctly
points out, the purpose of the anti-discrimination provision (signed by
President Lyndon Johnson in 1965) was to end the racially and ethnically
discriminatory “national origins” immigration practice that was skewed in favor
of Western Europe. Trump’s executive order, to the contrary, is in no way an
effort to affect the racial or ethnic composition of the nation or its incoming
immigrants. The directive is an effort to protect national security from a
terrorist threat, which, as we shall see, Congress itself has found to have
roots in specified Muslim-majority countries. Because of the national-security
distinction between Trump’s 2017 order and Congress’s 1965 objective, it is not
necessary to construe them as contradictory, and principles of constitutional
interpretation counsel against doing so.
[…]
Federal immigration law also includes Section
1182(f), which states: “Whenever the President finds that the entry of any
aliens or 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 the entry of all aliens or any class of
aliens as immigrants or nonimmigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate”
[…]
Trump’s executive order also expressly relies on an
Obama-era provision of the immigration law, Section 1187(a)(12), which governs
the Visa Waiver Program. This statute empowers the executive branch to waive
the documentation requirements for certain aliens. In it, Congress itself
expressly discriminates based on country of origin.
Under this provision, Congress provides that an
alien is eligible for the waiver only if he or she has not been present (a) in
Iraq or Syria any time after March 1, 2011; (b) in any country whose government
is designated by the State Department as “repeatedly provid[ing] support for
acts of international terrorism”; or (c) in any country that has been
designated by the Department of Homeland Security as a country “of concern.”
So,
again, it’s not a Muslim ban. In some ways, it’s a major departure from what
the Obama administration executed, though with fewer snowflakes protesting at
airports. And it’s legal.
