First, a caveat. On policy grounds, I do not agree with President Trump’s order banning nationals from seven predominantly Muslim countries from entering the United States. While I agree that provisions for screening applicants can always be improved, a sudden ban on all entry will weaken America’s position in the world, embolden our enemies, help ISIS and other Islamic extremist organizations with their recruitment, and unfairly victimize literally thousands of individuals who have selflessly contributed to fighting terrorism – including Islamic extremism – around the world. I recognize, however, that I disagree with the President on policy. As President, Mr. Trump does not need to listen to me.
As President, however, Donald Trump does need to abide by the US Constitution and to manage effectively the operation of the government of the United States. In issuing his Executive Order on immigration, Mr. Trump failed miserably. Here are three specific ways he failed.
(1) President Trump could have ensured that his Executive Order (EO) was consistent with the US Constitution by excluding legal permanent residents (AKA “green card” holders) from the entry ban, but he did not.
(2) President Trump could have made an exception for “special immigrant visa” (SIV) holders, which includes persons who have demonstrated extraordinary commitment to American values by helping advance American foreign and military objectives abroad, but he did not.
(3) President Trump could have made allowances for persons who were already in the air flying from an overseas origin to the USA, but he did not.
Let’s look at each of those failures in more detail.
Legal Permanent Residents: It is telling that when Department of Homeland Security officials first saw the text of the EO they interpreted it not to cover legal permanent aliens since it was clear to the immigration experts that such a ban cannot, under the US Constitution, be applied to permanent residents of the USA. The experts were overruled by the White House, which specifically ordered the exclusion of legal permanent residents. That specific policy direction from the White House was clearly unconstitutional because it denied the right of due process and equal protection to legal permanent residents of the United States. (Note: According to Section A of the 14th Amendment to the Constitution, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) While numerous Federal Courts quickly moved to prevent the removal of legal permanent residents, countless reports indicate that many such individuals were deported or “turned around” despite the existence of valid court orders. Others were coerced into “voluntarily” giving up their status as legal permanent residents under various threats. The legal mess from this part of the EO will likely drag on for months or years. The impact on the lives of people who were summarily returned to countries where they do not live, do not have a home, and may well be targeted for politically-motivated arrest or execution is incalculable. The impact on American security will be severe.
Special Immigrant Visa Holders: The fact that the very first person to be detained pending expulsion under the EO was Hameed Khalid Darweesh, an Iraqi who had worked for the US military in Iraq for 10 years prior to immigrating to the USA with his family, is emblematic of this deeply flawed EO. Mr. Darweesh was not a newly-arriving immigrant; he already lived here. Even after immigrating on an SIV, however, Mr. Darweesh continued to work with the US military and it was in this capacity that he agreed to return on a dangerous mission to Iraq to help US military advisors working to defeat ISIS. As he was returning from this dangerous mission undertaken on behalf of the US government, Hameed Darweesh was detained and would have been deported under the provisions of the EO had not a Federal Court quickly ruled that he must be afforded full due process under the Constitution. Luckily for Mr. Darweesh, immigration officers in New York followed the court order. Reports from elsewhere in the USA indicate that other permanent residents were not so fortunate. To understand how unfair and how counterproductive the EO was as written, consider that Mr. Darweesh had survived 10 arduous years supporting US forces in Iraq. Under SIV rules, he would have been eligible to immigrate to the USA after just two, but he stayed in Iraq to support US troops because he believed in the US cause and the US government. Even after he finally did leave to save the lives of his family, he agreed to return to Iraq to support US troops. As thanks, the US nearly threw him out of the country. Mr. Darweesh is one man, but his story is the story of thousands of Iraqis.
While the Pentagon, under the leadership of General James Mattis, is preparing a list of SIV holders from Iraq as well as Iraqis who have provided invaluable assistance to US troops but who are still in Iraq, there is nothing in the EO that would allow the State Department to issue visas to those individuals or that would allow the Department of Homeland Security to admit them to the USA. I have faith in the ability of Secretary “Mad Dog” Mattis to convince the White House to modify the EO, but that does not change the fact that it should never have been written so as to exclude people who have risked their lives to advance US security and save the lives of US service members.
People in the Air: A basic principle of American legal system is that no law can be applied retroactively. In other words, a city or state cannot decide 2017 to make fireworks illegal and then proceed to fine or arrest everyone who has ever lit a firecracker in the 50 years prior to that ban. While retroactive laws are rightly acknowledged to be illegal and unethical, that is exactly what the EO did to the hundreds of people who boarded planes thinking that they had done absolutely everything right to prepare for their trip to the USA but then were treated as criminals on arrival. Those caught in this trap included tourists, students, business people and at least one tiny infant coming to the USA for emergency open heart surgery. A 60-year old woman was not allowed to see her severely ill mother in a US hospital for even a few minutes before being sent back. The horror stories have been repeated hundreds of times. These stories of personal anguish, as well as the perception that the US is ignoring one of the pillars of its own legal system, could have easily been avoided by including even a very brief grace period for persons who were already in the air. Despite White House comments to the contrary, no one from one of the seven countries included in the ban could possibly receive a visa quickly enough to travel during that tiny window, meaning that allowing such a window carried no risk, no downside at all. (Note: All persons from those seven countries were already subject to “special processing” requirements – AKA extreme vetting – that takes at least weeks and usually months to complete even for a simple tourist visa.)
Why Did This Happen?
There are only two ways this could happen. Either the White House is so unaware of the US Constitution and long history of the US working closely with foreign nationals to advance US national security that they did not realize how detrimental the EO would be, or they did not care.
Conservatives such as Karl Rove and former Vice President Dick Cheney have clearly expressed their disappointment with President Trump’s EO on immigration, stating that it could have, and should have, been handled much better. Karl Rove, for example, specifically used the term “amateurish” to describe the drafting and roll-out of the EO.
I hope Dick Cheney and Karl Rove are correct, because the alternative explanation – that the White House knew its actions were unconstitutional and detrimental to US security but did not care – is much, much worse.