Quick Thoughts on the EO Suspending Immigration

[Edited 17:13 hrs, Jan 29]

In the midst of many other concerns, I wanted to write some thoughts on the recent suspension of the U.S. Refugee Admissions Program before I forgot them. Go to my Twitter page for a number of retweets on the Executive Order, most opposing it (but remember, retweet doesn’t mean approval). My main impressions: whether it’s unconstitutional or not, detaining an octogenarian Iranian couple in wheelchairs, or Iraqis who assisted U.S. troops, just sends a bloody bad message, as one of my Twitter acquaintance put it.

Above all else, I think the order is strange because it actually changes relatively little–so why the hoopla a) about signing it, and b) about opposing it? It’s not like the U.S. government has been welcoming refugees with open arms, mainly because, unlike Europe, we have a 3,000 miles of water separating us from the world’s refugee populations. So, it seems more about sending some kind of signal about…something (update, 1/31: Jake Fuentes speculated intelligently about what that something could be). In the mean time, administrative confusion is ensuring that the only people it’s affecting are decent people trying to go about their business.

David French at The National Review and William A. Jacobson at Legal Insurrection have done a great job actually breaking down the true from the false . French’s article is especially good; LI casts doubt on airport detentions that actually seem to have happened, and gets some other things wrong as well. One further caveat on these articles: you can flippantly talk about the moratorium “only” being X-number of days, but when you’re waiting for relief from starvation, homelessness, or persecution, 3 or 4 months is an awfully long time.

  1. The full text of the executive order can be found at CNN or The New York Times.
  2. For comprehensive statistics, with links, on U.S. immigration, the following articles from the Pew Research Center are absolutely indispensable:
    1. October 5, 2016, “US Admits Record Number of Muslim Refugees in 2016.”
    2. January 27, 2017, “Key Facts About Refugees to the U.S.”
  3. When I said yesterday that “it didn’t come from nowhere,” I was referring to the fact that these seven countries were already on the government’s radar.
    1. There was already a pretty stiff vetting process in place for refugees–you can see the State Department’s page on that,  or the infographic on obamawhitehouse.gov.
    2. In addition, the EO refers to U.S. Code Title 8, Chapter 12, which can be found at Cornell’s LII. The EO essentially works off the framework established by the Obama Administration.
    3. In fact, as Seth J. Frantzman points out with considerable force, nowhere in the EO are most of the seven countries mentioned–that’s because immigration from there was already restricted by the Obama Administration in 2015, and updated in February of 2016 to include Libya, Somalia, and Yemen–using similar language to the EO, I might add.
  4. Also, I just have to say, an infographic from last night claiming that countries where Trump does business will be exempt is click-bait bull, as soon as you realize the pre-existing background of these restrictions.
  5. Despite the rulings in New York and Virginia last night, it is actually not at all clear that this EO was unconstitutional, and I’d be surprised if these rulings are upheld in February. Primarily because the administration likely can demonstrate that it is not a “MuslimBan” (one reason I didn’t use that hashtag yesterday–besides, Syrian Christians are being denied entry anyway). Also that the language for persecuted religious minorities long pre-dates Trump. Some have complained that Middle Eastern Christians have gone to the back of the line under the Obama administration, and that could be true for all I know. However, while ISIS has a special hatred for Christian communities (as do many Christians’ neighbors, when the going gets tough), the majority of ISIS victims are Muslims (the BBC has the best column on this fraught topic).

So, what exactly is supposed to be gained by either the much-publicized signing of this EO, or the furious protests against it?  For instance, these measures almost certainly wouldn’t have prevented the San Bernardino shooting in 2015–Pakistan and Saudi Arabia aren’t on the list. On the other hand, it might have prevented the OSU attack perpetrated by a Somali immigrant. David French points out that, after review, the U.S. refugee cap will be set at 50,000–roughly what it was for the Bush and most of the Obama years. Much as it is a crime these days to “normalize” Trump, the fact is that this EO mostly continues what Obama started. Many things about it are bad, I think: the timing, the tweaks, the delays, and the harassment caused by shoddy implementation, are mostly negatives, or unproved positives, in my book. It was just clarified this morning that it doesn’t apply to green card holders.

So…why?? It could be, as a couple right-wing sites have suggested, that the administration was trolling the media. Or that the media and most academics and public intellectuals, myself included, let themselves/ourselves be trolled. It could also be that this is what the administration feels is the next logical step in national security. But really,  it needs to get its act together if so, because images speak louder than words in the information age.

In the middle of all this smoke and fog,  people have missed another story that came out yesterday evening, and that is the National Security Presidential Memorandum 2, which tells us a lot about how the National Security Council and the Homeland Security Council will function under President Trump. I’d submit that this is very worthy of everyone’s attention.

Addendum:

Some key passages from the EO itself (your interpretation of what’s key may be different from mine). Section 10 in particular has been overlooked, and can easily be interpreted as deliberately targeting specific categories of people in the U.S. in order to stoke popular fear and xenophobia. I’m guessing we already release such data, though I haven’t seen it. In any case, if the numbers are extremely high, that would be suspicious…

  1. Section 1: In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, 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. [This is a fairly broad brush, but 
  2. Section 3b: 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. [There’s actually nothing unusual about this language; see below]
  3. Section 3c: 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).
  4. Section 3d: 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.
  5. Section 3g: 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.
  6. Section 4: [On implementing a screening program]: This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
  7. Section 5a: The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.
  8. Section 5b: Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims 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. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
  9. Section 5c: Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
  10. Section 5d: Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest. [Section 5e states the case-by-case exception]
  11. Section 10. Transparency and Data Collection.
    (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter:
    (i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;
    (ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and
    (iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and
    (iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
    (b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.