By: Ammar Hussain
On January 27, 2017, seven days after taking office, President Donald Trump issued an executive order aimed to bar immigrants from seven countries from entering the United States due to national security concerns. The countries included Iraq, Iran, Libya, Sudan, Syria, Somalia, and Yemen. The executive order also aimed to reduce the number of refugees admitted into the US from 110,000 to 50,000 per year as well as suspend the United States Refugee Admissions Program for 120 days. National outrage soon followed because over 90% of the citizens of the seven countries were followers of the Islamic faith and it seemed as if President Trump was fulfilling his campaign promise to “ban all Muslims”.
The executive order presents a unique question: what is the legality of an immigration ban that speaks to national security, but whispers religious intolerance and discrimination?
According to the Constitution and throughout the history of the country, the federal government has and has had the power to regulate immigration and defend its people. Accordingly, the President of the United States has a duty to protect the public interest. To gain a better understanding of the immigration ban, it is important to review the history of previous immigration bans.
While President Trump’s immigration ban is the first in recent memory, America has a long history of barring immigrants. Since its inception, Congress has possessed the authority to restrict immigrants but did not exercise this power until almost one hundred years later. The 1860s saw a period of mass Chinese immigration to the US. As the American public became more fearful and disdainful that the Chinese were criminals and would take their jobs, Congress passed the Chinese Exclusion Act. This aimed to significantly reduce the number of Chinese workers and women entering the nation. By the turn of the 20th century, the newly formed Immigration Restriction League petitioned Congress to administer a literacy test to immigrants who wished to settle in the US. This proposal was to target European immigrants coming into Ellis Island, the majority of whom were poor and illiterate. Much to the chagrin of President Woodrow Wilson, Congress passed the literacy test standard. Soon after the literacy test standard, Congress passed the Immigration Act of 1924, which was the most severe immigration restriction in US history. This act sought to limit the number of Eastern Europeans by reducing the issuance of visas to 2% of the total nationality currently present in the country and completely banning immigrants from Asia. It was not until 1965, when President Lyndon Johnson, partly under pressure from the civil rights movements passed the Immigration and Nationality Act. The Act eliminated the quota system based on nationality. Instead, the Immigration and Nationality Act prioritized immigrants who already had family members in the U.S. It also sought to offer protection to refugees from areas with violence and conflict. The act opened the gates to new ethnic groups as the US saw a dramatic increase of immigrants from Mexico, the Philippines, Korea, Pakistan, India, Cuba, and Vietnam.
Although previous immigration restrictions have not been focused primarily on national security, the federal government’s power stretches far when it comes to national security. During World War II, the government was legally allowed to detain Japanese American citizens in internment camps because citizens of Japanese descent were considered a threat to the nation and public. In the famous case, Korematsu v. United States, the Supreme Court ruled interning American citizens with specific ethnic backgrounds was legal and justified so long as it was related to national security. This case is an example of how much power the federal government possesses when dealing with national security. But just how much does Korematsu relate to the current immigration ban?
There is a significant difference between previous immigration bans and President Trump’s immigration ban. Previous immigration bans have been constitutional because they aimed to ban citizens based on geographic areas. President Trump’s original ban proposed to harbor persecuted religious minorities from the seven countries, which suggested he aimed only to ban Muslims. The Fourth Circuit Court of Appeals affirmed the nationwide injunction because the court accounted for President Trump’s campaign promises to “ban all Muslims”, and held the executive order violated the Establishment Clause. The Ninth Circuit Court of Appeals also held the travel ban was unconstitutional because it deprived immigrants with valid visas of their right to due process.
Since the original travel ban was unconstitutional, President Trump signed a second executive order titled “Protecting the Nation From Foreign Terrorist Entry into the United States.” The revised order suspended immigration from Sudan, Syria, Iran, Libya, Somalia, and Yemen for 90 days. Again, Hawaii along with several other states filed a lawsuit seeking a temporary restraining order. The Ninth Circuit Court in its ruling to uphold the temporary restraining order stated that “the president must make a sufficient finding that the entry of these classes of people would be detrimental to the interests of the United States.”
The Supreme Court, however, viewed the legality of the executive order differently. The court once stated, “The exclusion of aliens is a fundamental act of sovereignty … inherent in the executive power”. The Court lifted the injunction in part on the grounds that it was unconstitutional to probe into the President’s motives and rule on campaign statements. The Supreme Court, however, made an exception for people who have “any bona fide relationship with a person or entity in the United States.”
President Trump has received much criticism for his executive orders and presidential proclamations. The proposal for enhanced vetting capabilities and the ban altogether are based on the belief that majority of immigrants from the stated countries are inherently dangerous. However, studies have shown over the last decade 71% of all terrorism-related fatalities have been linked to domestic right-wing extremists, while Islamic extremists committed 26% of the fatalities. Moreover, since “9/11, only 23% of Muslim-Americans involved with violent extremist plots had family backgrounds in these seven countries. Additionally, there have been no fatalities in the United States caused by extremists with family backgrounds in these countries.” However, there is no data that suggests the immigrants from the listed countries are more likely to carry out acts of terror. America has always served as a beacon of opportunity, and many immigrants are grateful for having the chance at building a better life. Other critics, including Senator John McCain, have claimed the immigration ban could potentially hurt the interests of the United States abroad and harm its national security. The immigration ban can also potentially convey a negative message to our Muslim allies, including Saudi Arabia and Iraq who are crucial in the fight to defeat extremism. I agree with these skeptics, and foresee this immigration ban being detrimental to the national security and foreign relations interests of the United States.