President Trump’s first two weeks have been extremely busy, including making good on his campaign promises to secure America’s borders in the form of three Executive Orders:
It is the policy of the executive branch to:
(a) secure the southern border of the United States through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism;
(b) detain individuals apprehended on suspicion of violating Federal or State law, including Federal immigration law, pending further proceedings regarding those violations;
(c) expedite determinations of apprehended individuals’ claims of eligibility to remain in the United States;
(d) remove promptly those individuals whose legal claims to remain in the United States have been lawfully rejected, after any appropriate civil or criminal sanctions have been imposed; and
(e) cooperate fully with States and local law enforcement in enacting Federal-State partnerships to enforce Federal immigration priorities, as well as State monitoring and detention programs that are consistent with Federal law and do not undermine Federal immigration priorities.
It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens.
Pursuant to which, Executive Order 13768 further states:
Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.
(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.
Much has been written abut these executive orders, a great deal of which is wrong:
What did Trump do? Did he implement his promised Muslim ban? No, far from it. He backed down dramatically from his campaign promises and instead signed an executive order dominated mainly by moderate refugee restrictions and temporary provisions aimed directly at limiting immigration from jihadist conflict zones.
Let’s analyze the key provisions, separate the fact from the hysteria, and introduce just a bit of historical perspective.
First, the order temporarily halts refugee admissions for 120 days to improve the vetting process, then caps refugee admissions at 50,000 per year. Outrageous, right? Not so fast. Before 2016, when Obama dramatically ramped up refugee admissions, Trump’s 50,000 stands roughly in between a typical year of refugee admissions in George W. Bush’s two terms and a typical year in Obama’s two terms.
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” (emphasis added).
Section 1182(f) plainly and sweepingly authorizes the president to issue temporary bans on the entry of classes of aliens for national-security purposes. This is precisely what President Trump has done. In fact, in doing so, he expressly cites Section 1182(f), and his executive order tracks the language of the statute (finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States”).
Politically, the open borders rhetoric helps Trump. Even in California, three-quarters of the population, according to a recent UC Berkeley survey, oppose sanctuary cities. Overall, more Americans favor less immigration than more. Most, according to a recent Pew Research Center study, also want tougher border controls and increased deportations. They also want newcomers to come legally and adopt the prevailing cultural norms, including English.
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.
It’s unfortunate that Judge [James] Robart’s decision, like the one handed down last weekend in the Eastern District of New York, includes nearly no legal reasoning or explanation, such that we could judge why he found the order unconstitutional or illegal. Federal district judges often issue very summary orders when they are asked to rule on an emergency basis on a request for a temporary restraining order or preliminary injunction, so expecting a scholarly opinion is unrealistic. But with the order halting a nationwide Executive Branch policy in its tracks and sure to be used as a political club, it should not have been too much to ask the court to provide some clue to its reasoning for just saying “this is illegal.”
Fourth, this is a TRO: it applies only until the court can hold a more complete hearing, which it scheduled for Monday.
Other border control actions are going to require congressional approval (including much wider use of E-Verify) and whatever tax changes “make Mexico pay for the wall” (there are ways).
Could Trump’s orders have gone farther? Sure! But it’s a tremendous start for somehow who many in the Republican primaries thought was a secret fan of illegal alien amnesty.