Someone asked me on Facebook what my problem was with the “Temporary Ban” that President Trump imposed. I thought I would go into some detail.
What Has Happened?
First, how does the President have this authority in the first place? Federal law states that he may suspend travel of entire classes of people that he may state and for a period of time such as he may determine. Here’s what 8 USC § 1182(f) 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.
The courts will determine if this is sufficient power, and President Trump’s order does quote other laws. The key point is that Congress envisioned the need for the president to act quickly.
The meat of the order that has caused all the chaos is as follows:
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).
For clarity, C-2 and G-1, G-2, G-3, and G-4 visas are used by diplomats and their families (you can find all the visa categories here). In other words, excluding those visas, in the general case, all other non-citizens who hold passports from the seven countries in question are barred from entering the United States, whether they are visitors or resident aliens.
There are a few exceptions:
(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.
This means that the Secretaries of State and Homeland Security can update the rules. There is no Secretary of State at the moment. This leaves the Secretary of Homeland Security John Kelly. This apparently happened over the weekend, according to some reports.
The text of the order then has several references to people fleeing religious persecution, such as the following:
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.
The majority religion of each of the countries listed in the ban is Islam. What this rule states is that if you are a woman persecuted for wearing not wearing a head scarf and happen to be Christian or Jewish or Buddhist, you get priority. If you are Muslim you are out of luck.
I have, then, three objections to the presidential order.
1. Callous Disregard for Human Life
The way it was implemented stranded many people thousands of miles away from their homes and loved ones, and in some cases leaving some who were visiting a foreign country in a position where they would be forcibly returned to a “home” country that would put their lives at risk. How might this happen? Imagine a man who was born in one of the countries “of concern” (say, Iran) but departed as a political refugee to England. Then he moved to the United States, because he married an American woman. His home, his wife, and perhaps children are in the United States. If he went back to England, or worse, to some other country, last week to visit a sick friend or relative, he would not have permission to return to the United States, and he wouldn’t have permission to remain in the UK. That means that he would be at risk of being sent back to Iran. The original order did not take people like this man into account. Even to this moment, if he does not yet have a green card (that takes a year or two), he would not be able to get back home. Even at relatively low probabilities of this happening with any one individual, The Law of Large Numbers means that a case like this has almost assuredly happened. Perhaps many.
2. Made Up Threat
President Trump wasn’t responding to a real threat. The Wall Street Journal (no liberal bastion) analyzed this in depth and found that of “180 people charged with jihadist terrorism-related crimes or who died before being charged, 11 were identified as being from Syria, Iraq, Iran, Libya, Yemen, Sudan or Somalia”. Moreover, in the past 24 hours, it’s become clear that the president acted without proper input from his Secretary of Homeland Security. And so, this was, as my friend and columnist Bruce Schneier coined the term years ago, Security Theater.
A decision that has no upside tradeoff that harms others is, by definition, morally bankrupt. I conclude that Trump is therefore morally bankrupt.
3. Religious Bigotry
I wrote at the top that I had three objections. The third objection is that the ban, as written, has the tinge of bigotry, because one religion in particular is disfavored – Islam.
There may be times when we need to suspend travel to the United States in a hurry. Imagine what would happen if there were a rampant and dangerous pandemic. The president needs to have the authority to protect the country in those sorts of circumstances. We need to be able to trust that the president will use his authority in a moral and responsible way. He didn’t do that here. Far from it. In this case he acted in callous disregard for human life. The president abused his authority.