President Trump’s immigration ban has hit a central nerve in the American psyche and culture. Numerous Americans and other nations are violently opposed to it. And protesters are claiming racial or religious discrimination. Furthermore, lawyers and the follow-on lawsuits filed in federal district court claim violations of the 5th Amendment and due process in accordance with the U.S. Constitution.
The opposition is reaching a feverous pitch and appears no end to the protests. Yet, are protestors, and the lawsuits position relevant to the executive order? Could they be mixing apples and oranges or in other terms, mixing opinion v. actual words? Is anger (or hatred) toward a person [Trump] clouding judgments and causing many to disregard the verbiage in the order?
What does this executive order say and mean and do opposing views have a sound argument?
What does the order do?
It [EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES] directs the Department of Homeland Security (DHS), in consultation with the Secretary of State and Director of National Intelligence to review and act on the following:
– Suspend for 90 days the Issuance of Visas and Other Immigration Benefits to Nationals of “Countries of Concern” (Libya, Syria, Yemen, Iraq, Somalia, Sudan and Iran)
– Suspend for 120 days the U.S. Refugee Admissions Program (USRAP)
– Suspend 50,000 Syrian refugees for 2017 “until I [the President] determines that additional admissions would be in the national interest.”
– Suspend the Visa Interview Waiver Program which waives personal interview requirement for frequent travelers to the U.S.
– Implement Uniform Screening Standards for All Immigration Programs.
– Realign U.S. Refugee Admissions Program for Fiscal Year 2017 within 120 days.
– Rescind Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility which is part of the 1965 Immigration and Nationality Act
– Expedite Completion of the Biometric Entry-Exit Tracking System
– Review all country visa agreements to ensure they support Visa reciprocity
A good indicator of protester discontent is what former President Obama came out and stated, “The President [Obama] fundamentally disagrees with the notion of discriminating against individuals because of their faith or religion.” Further, those who oppose the ban question the facts or data behind section 1’s purpose which highlights the need to defend against “terrorist ties” to the affected nations. Per experts and data, these seven countries have little to no relationship to terrorist attacks in the U.S. since 9/11. It begs the question, why these countries?
The legal challenge also questions the intent of the executive order. The New York Eastern District Court Judge Ann Donnell, who filed a “stay of proceedings” (A ruling by a court to stop or suspend an action) specifically argues two main points against the order:
1) “…removal of petitioners and others violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution”. Addresses specifically two plaintiffs HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI and their violation of the U.S. constitution’s 5th Amendment’s due process.2) “There is imminent danger that absent the stay of removal, there will be a substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to
2) “There is imminent danger that absent the stay of removal, there will be a substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 27, 2017, Executive Order.”
In essence, her ruling halts the actions of federal agencies to follow through with the executive order (specifically Section 1 and Section 3.). And further directs federal marshals to enforce compliance. Judge Donnelly’s stay (and also that of the 9th district court) is based on a constitutional and injurious legal challenge or violation of 5th Amendment and personal injury for the plaintiffs.
Her argument, without real detail, most likely objects to the immigration actions (as cited in the executive order) as unconstitutional under the 5th Amendment which requires that “due process of law” be part of any proceeding that denies a citizen “life, liberty or property.”
And with respect to “personal injury,” it is vague but could address the loss of property without compensation?
Her argument, without real detail, most likely objects to the immigration actions (as cited in the executive order) as unconstitutional under the 5th Amendment which requires that “due process of law” be part of any proceeding that denies a citizen “life, liberty or property.” And with respect to “personal injury,” it is vague but could address the loss of property without compensation?
Soundness of the challenges.
Despite some legitimate protestor and legal arguments, opinion and conjecture (citing President Obama) are merely personal views full of suspicion. A heated election and literal contempt for our president can taint a position with bias, subjectivity, and misinformation. Consequently, not worthy to use as arguments against directive [execuitve order] language. But would agree that it requires attention and addressing since it is a perception and perceptions can shape the truth — real or not.
With respect to the legal challenge, it should all be about the language because words mean things and words in laws direct actions to “right” behavior and ensure compliance. And must be strictly interpreted as stated, not inferred. An obvious question is, do non-citizens have legal rights under our constitution? Per numerous legal cases, non-citizens do have rights and protections under the 5th (and 14th) Amendment. Specifically, due process or the fair treatment through the regular judicial system and the protection of life, liberty or property.
Both protections apply to “persons” as stated in the constitution; clarifying, “persons” was (and still is) commonly referred to anyone within U.S. borders.
The violations Donnelly’s “stay” claims stem from actions by U.S. Customs and Border Protection (CBP) as well as U.S. Citizenship and Immigration Service (USCIS) detaining and in particular cases deporting “persons” (non-citizens) without “due process.” In other words, they did not have access to a lawyer or the legal proceedings. It is at the heart of the legal challenge.
Executive order intent
Looking at the surface of these allegations, there appears to be some validity to the claims? However, this was not the intent of the executive order. Violations along these lines was an unfortunate effect due to a lack of coordination, poor communications and improper direction to affected federal agencies. On the contrary, the real intent was to protect U.S. citizens from the unlawful entry of those people who would do harm to our citizens.
Furthermore, the president has broad legal authority to restrict immigration. Under Title 8 U.S. Code § 1182 – Inadmissible Aliens, he can restrict any class of foreign nationals he deems “detrimental to the interests of the United States” without needing legislation or congressional approval. And CBP and USCIS can deny any non-U.S. citizen (green card, visa, etc.) from entering the U.S. based on history or suspect under 13 classes of inadmissibility, of which “terrorists” is one. Likewise, in 2015, the Supreme Court ruled that the government can deny someone a visa on national security grounds without a particular reason.
An authority that should be upheld in order to truly secure our borders.
The executive order’s intent was not to discriminate based on religious beliefs or deny the rights or “persons.” On the contrary, as far as discrimination, the executive order states, “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 is words and meaning that ultimately direct actions and tasks and will determine the final legal outcome, not inferences or sensationalized legal actions or protests.
It is true that the law’s quick application was poorly managed, not properly communicated, and invited misaligned public protest but at the end of the day what the executive order says and means will prevail. What President Trump intended was to suspend and review, not halt the immigration process. It is to examine, adjust and better secure immigration procedures to protect U.S. citizens from “terrorist-linked” persons or countries.
If there is a question to protest it is not the “what” the order says but the “how” it was executed. The “what” is on solid ground!