SEPARATING FACT FROM SICKENING MEDIA FICTION
ON TRUMP’S IMMIGRATION EXECUTIVE ORDER. by Daniel
Horowitz, Chris
Pandolfo | January 29, 2017
“Any
alien coming to this country must or ought to know, that this being an
independent nation, it has all the rights concerning the removal of aliens
which belong by the law of nations to any other; that while he remains in the
country in the character of an alien, he can claim no other privilege than such
as an alien is entitled to, and consequently, whatever risque he may incur in
that capacity is incurred voluntarily, with the hope that in due time by his
unexceptionable conduct, he may become a citizen of the United States.” ~Justice James Iredell, 1799
There is a lot of confusion swirling
around the events that transpired this weekend as a result of Trump’s executive
order on immigration. Make no mistake: every word of Trump’s executive order is
in accordance with statute.
It’s important not to conflate
political arguments with legal arguments, as many liberals and far too many
“conservatives” on social media are doing. While the timing and
coordination of implementing this order might have been poorly planned, we shouldn’t
allow that to undermine the broader need to defend our sovereignty. For
courts to violate years’ worth of precedent and steal our sovereignty should
concern everyone.
What the
order actually does
Among other things, the key
provisions at the center of the existing controversy are as follows:
It shuts
off the issuance of all new immigrant and non-immigrant visas for 90 days from
the following seven volatile countries: Syria, Iraq, Iran, Libya, Somalia,
Sudan, and Yemen. Any non-citizen from those
seven countries (not “all” Muslim countries) is excluded from entering the
country during this time-period (which usually means they won’t be able to
board a direct flight to America). After 30 days, the secretary of state and
secretary of homeland security must submit a report to completely revamp the
vetting process going forward. Just
14 years ago, Democrats supported cutting off visas from dangerous countries
Within 60 days, countries will have
to submit any information that the administration determines necessary,
pursuant to the findings of this report, in order to adjudicate a visa
application and ensure they are properly vetted. Any country that fails to
submit this information will not be able to send foreign nationals to our
country. All the while, the ban can be extended and expanded at any time.
In addition, the entire refugee resettlement program is
suspended for four months pending a complete investigation of the
program and a plan to restructure it and prioritize those who are truly in
danger of religious persecution. After 120 days, the program may resume, but
only for those countries Secretaries Kelly and Tillerson determine do not pose
a threat. The program from Syria is completely suspended until the president
personally gives the green light. This was actually a judicious and cautious
approach from Trump.
With regards to refugees and those
who seek to enter from the seven countries temporarily excluded, the order gave
discretion to the State Department and DHS to admit individuals on a
case-by-case basis for important reasons, even during the temporary
moratorium. Statement of
principles on the right of a country to exclude non-citizens
Those who
want to immigrate: There is no affirmative right,
constitutional or otherwise, to visit or settle in the United States. Period.
Based on the social contract, social
compact, sovereignty, long-standing law of nation-states, governance by the
consent of the governed, the plenary power of Congress over immigration, and
200 years of case law, our political branches of government have the power to
exclude or invite any individual or classes people for any reason on a
temporary or even permanent basis – without any involvement from the courts.[1] Congress
has already delegated its authority to
the president to shut off any form of immigration at will at any time.
Immigrants
already here: Those already admitted to this
country with the consent of the citizenry have unalienable rights. They cannot
be indefinitely detained. However, they can be deported for any reason if they
are not citizens. In Fong Yue Ting v. United
States (1893), which is
still settled law, the court ruled that Congress has the same plenary power to
deport aliens for any reason as it does to exclude them and that the statutory
procedures and conditions for doing so are due process.[2] Congress has
established the process for deportation of those already here. However,
as long as a legal permanent resident leaves the country he has no affirmative
right to re-enter.[3] Either way, they have absolutely no right
to judicial review other than to ensure that statutes are properly
followed. But can Trump prevent
those with green cards from re-entering the country?
The statute is clear as day. The
Immigration and Nationality Act (§ 212(f)) gives the president plenary power to
“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.” Clearly, the president has
the authority to block any non-citizen, including refugees, green card holders,
and foreign students from entering the country. Also, for purposes of
deportation, there is no difference between a green card holder or a holder of
a non-immigrant visa. No foreign national who has not yet obtained
citizenship has an affirmative right to re-enter the country.
Is this a
ban on Muslim immigration? No, it’s a moratorium on immigration
or re-entries from seven individual countries and a temporary moratorium on
refugees from all countries, subject to case-by-case exceptions.
Why didn’t
Trump place restrictions on immigration/visas from Saudi Arabia and other
Muslim countries? That’s probably a good idea.
But this was actually a judicious and cautious approach from Trump to start
with low-hanging fruit.
These seven countries are failed states or
enemies of the U.S. (in the case of Iran). As such, there is absolutely
no way to share data with the host countries and properly vet them.
Somalia has been one of the biggest trouble spots. The other countries
are marred in Islamic civil wars. Moreover, these are the countries that
existing law targets for travel restrictions, and that Obama’s own DHS listed last year.
Why would
Trump include green card holders in the ban on re-entry? Both liberals and conservatives
expressed concern over hundreds of individuals going over to fight for
ISIS. We are already limited in how we can combat this growing threat
among U.S. citizens. Given that it is completely legal to exclude non-citizens upon re-entry,
Trump extended the ban to legal permanent residents as well.
If a Somali refugee is travelling
back to Somalia (so much for credible fear of persecution!), government
officials should have the ability to prevent that person from coming back when
necessary. Obviously, there are some individuals from these seven countries who
already have green cards and we might not want to exclude. That is why the
order grants discretion to the State Department to issue case-by-case
exemptions for “religious persecution, “or when the person is already in
transit and denying admission would cause undue hardship.”
A CBP agent is always stationed at
any international airport from which these individuals would board a direct
flight to the United States (Paris and Dubai, for example). That individual
would not allow anyone covered by this ban onto a U.S.-bound flight unless he
grants them a hardship exemption. Indeed, it appears that green card holders
returning yesterday from those seven countries were all granted entry. What’s
with the chaos at the airports and the courts? Henceforth, CBP agents will not
allow individual aliens from those seven countries to board a flight to the
U.S. So the chaos will end.
The problem arose from the 100 or so
individuals that were already in
transit when the order took effect. When they arrived at American
airports, they were detained at customs. Standing at this point is not
tantamount to being on American soil.[4] However, a
federal judge in New York issued a stay and prevented the feds from sending two
individuals back on a flight. Other judges have prevented officials from even
detaining such persons. It’s unclear if federal agents might have made a
mistake and released some of these individuals before ordering them to leave
the country. Once they are released onto American soil, any effort to remove
them is treated as a deportation, not an exclusion, and is subject to the due
process afforded them by congressional statutes (not the Constitution).
Thus, it’s unclear if the stay even
applied to any element of the order or whether it applied to anomalous
circumstances or particular actions taken by federal officials that overstepped
the order.
It’s also confusing because many
contemporary judges have no respect for our sovereignty and have been gradually
chipping away at the plenary power of Congress (or the president, pursuant to
statute) to exclude aliens re-entering the country, despite years of settled
law. If courts are indeed violating our sovereignty, this is the very grave
danger I warned about in Stolen Sovereignty.
Either way, it should not affect the ability of the administration to enforce
the order against those who want to prospectively board flights to return.
Editor's
note: An earlier version of this piece transposed the time frames for visa
restrictions and the vetting report. The error has been corrected.
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