On January 27, 2017 the President of the United States signed an Executive Order, one of his first acts as leader of the free world. Its premise is to protect Americans from the alleged threat of terrorists pretending to be refugees in order to get into the United States.
There has been a lot of discussion about this Order. Some people are calling it a Muslim ban, while others are justifying it as a legitimate and reasonable approach to American security. What no one seems to be doing is actually reading the Order itself.
Whoever wrote the Executive Order deserves a medal for literature. It is subtle and eloquent in a way the man who signed it will never be.
Does it ban Muslims outright?
What the Executive Order does is suspend immigrant and non-immigrant entry into the United States from certain countries “of Particular Concern”.
Refugees from Syria are denied entry until the president says otherwise. People from countries designated by the Secretary of State and Secretary of Homeland Security as having repeatedly provided support for international terrorism are also banned, but for a period of ninety days.
This list (so far) includes Iraq, Iran, Sudan, Libya, Yemen and Somalia. Saudi Arabia, which is known for encouraging the extremist Islamic beliefs adopted by terrorists, is suspiciously absent from this list. Whether this is due to the President’s business dealings with the Kingdom or vested American interest in maintaining relations with them is unclear.
The Order also changes the criteria for refugee claims, prioritizing those “made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality”.
As most of the refugees are from Muslim-majority countries, most of those seeking safety in the United States are Muslim.
Though the Order says that “the United States should not admit those who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation”, it does not offer any protection to people fleeing persecution due to gender, sexual orientation, or race. Being a member of a religious minority seems to be the only exception to the ban.
The Order speaks of these new rules as necessary in part to “reduce investigative burdens on relevant agencies”. However, it calls for a flurry of security reports to be provided by the Secretary of State, Director of Homeland Security, and the Directors of the FBI and of National Intelligence and says that the Secretaries of State and Homeland Security can admit individual refugees on a case-by-case basis. All this sounds like MORE of a burden, not less.
Is this Executive Order legal?
Not according to the former acting Attorney General Sally Yates. A holdover from the Obama administration, she was asked by the new administration to stay on until the president’s nominee for Attorney General, Jeff Sessions, is confirmed by the Senate.
Last night, Yates told the US Department of Justice not to defend the Executive Order in the courts. In a letter to Justice Department lawyers, she said:
“I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right…At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.”
She is not the first to acknowledge the Order as potentially illegal.
On January 28, 2017, a Federal Court in New York presided by Judge Ann Donnelly granted an Emergency Motion of Stay Removal to Hamid Khalid Darweesh, an Iraqi who’d risked his life acting as interpreter to the US army during the Iraq war, and Haider Sameer Abdulkhaleq Alshawi, another Iraqi who was en route to reunite with his wife and child in the US. Both were detained at the airport under the Executive Order and with the help of the American Civil Liberties Union, fought back.
In her decision, Judge Donnelly said
“The petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution.”
Many other federal courts have followed suit, granting stays blocking the Executive Order from being enforced.
When you read the US Constitution, something the president has clearly never done, it is easy to understand why the motions were granted.
Article I, Section 9 prohibits laws that single out any particular group for punishment without trial. The Fifth Amendment goes even further, stating that no person should be “deprived of life, liberty, or property without due process of law”.
As far back as the Second World War, American courts have recognized the danger of Executive Orders like these. In 1944 in Korematsu v. The United States, the Supreme Court said that
“All legal restrictions which curtail the civil rights of a single racial group are immediately suspect… courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”
The President has rambled on about the danger of foreign terrorists masquerading as refugees, but neither he nor his administration have presented any numbers to back this up. Instead, he fired Sally Yates for refusing to enforce an Executive Order that is legally unenforceable, leaving his administration without anyone with the legal authority to sign warrants authorizing the surveillance of the foreigners he fears so much.
The reaction of protesters, public officials and the American courts are reasons to hope for all who hate xenophobia, for as comedian Aziz Ansari recently pointed out:
“Change doesn’t come from presidents. Change comes from large groups of angry people.”
If the protests and lawsuits are any indication, change is coming.