Donald Trump’s New Ban

by

Howard Adelman

I interrupt the series on antisemitism to discuss the new Executive Order of President Donald Trump. Since Israel/Palestine is a major producer of terrorists (almost all Palestinian, but some Jewish), imagine placing a travel ban on Israel/Palestine in the same way that one has been imposed on Iran, Syria, Libya, Somalia, Sudan, Yemen. Ask why none was imposed on Turkey or Lebanon.

Iraq has been removed from the list and the ban on travelers from Syria is no longer indefinite. The 27 January Executive Order, that was stayed by the courts, has been rescinded making the current multiple court challenges now moot. The new Executive Order will almost certainly be challenged on the grounds of whether it follows the requirements of due process and whether it violates the First Amendment insofar as the new ban still seems to be in accord with Donald Trump’s campaign promise to implement a “Muslim ban.”

This analysis can be much briefer because, fortunately, my colleagues at the Migration Policy Institute in Washington, have addressed  this topic, specifically Sarah Pierce, an associate policy analyst there, who has dissected the new Executive Order and has written a report entitled, “The Revised Trump Travel Ban: Who Might Be Affected from the Six Targeted Countries?” which can be found at: http://www.migrationpolicy.org/news/revised-trump-travel-ban-who-might-be-affected-six-targeted-countries.

There are two core issues concerning Donald Trump’s issuance of an Executive Order under section 212(f) giving the president the legal authority to suspend the entry of all or certain groups of foreign nationals if he finds that their entry would be “detrimental to the interests of the United States.”. The first, unchanged from the 27 January illegal Executive Order, is the unprecedented extent of such a ban, at least in this and the last centuries. One has to revert to the nineteenth century and the 1882 Chinese Exclusion Act (not rescinded until 1943) for a precedent of imposing anticipatory travel bans.

Jimmy Carter’s 1980 ban on Iranians was a specific response to the hostage crisis and was not at all “anticipatory.” On the other hand, there have been a number of nationality restricted bans, particularly in the 1920s, but all of these were eliminated when the U.S. moved to universal rather than country-specific migration limitations in the 1965 Immigration Act. These had not been so much anticipatory as explicitly discriminatory The second issue is that the U.S. has already by far the most thorough vetting procedure built into its immigration service in the world. Since the rationale for the original ban and for this revised ban remains the same – that the current practices and procedures are too porous – one looks for evidence or a rationale other than an assertion to justify the revised ban.

The second issue is that the U.S. has already by far the most thorough vetting procedure built into its immigration service in the world. Since the rationale for the original ban and for this revised ban remains the same – that the current practices and procedures are too porous – one looks for evidence or a rationale other than an assertion to justify the revised ban. 

It was not available in the 27 January Executive Order. It is also unavailable in the new 6 March Executive Order. This is part of a pattern of the new Donald Trump government administration by fiat. There is no evidence offered to justify even greater heightened vetting procedures just as there is no evidence for Trump’s assertions that Barack Obama tapped the phone lines in the Trump Tower.

There is certainly a precedent for applying vetting procedures based on country of origin rather than on “risks” re an individual.  After 9/11, George Bush under the National Security Entry-Exit Registration System, imposed unpalatable and heightened restrictions as conditions of entry on 24 Arab or Muslim-majority countries, but that was a response to a very specific and dramatic event and was not anticipatory. This is quite aside from the utility or erroneous rationale for imposing such a ban. The Bush era ban led to the deportation or refusal of entry to almost 14,000 individuals in the year after 9/11. I know of no study of the impact of those decisions on the lives of these people.

It is certainly true that this order is a vast improvement over the old order. It allows immigration officers to prepare since it does not go into effect until 16 March. It does not catch people up in transit. It is no longer applicable to green card holders or retroactively applied to those who already have a legal visa. But it still creates an enormous chill and a disincentive for meetings and educational conferences to be held in the U.S. given the uncertainty of who can get in. Border control personnel have been given wide interpretive and discretionary powers. When a Canadian born woman from Montreal, in spite of having crossed into the U.S. many times previously, was refused entry this past weekend because she lacked a visa, one begins to understand why tourism to the U.S. may have declined by as much as 20% following the 27 January aborted Executive Order. One seeks security and confidence when traveling to a foreign country.

When the criterion is not criminality or a terrorist link but the determination that the individual – not assessed individually but on mass – would be “detrimental to the interests of the United States,” one can expect another series of court challenges against the need for revised vetting procedure – one rationale – when no evidence is offered that one is needed. When the criterion is so loosey-goosey, there is a good possibility that this revised travel ban will be overturned in the courts as well, but certainly not as easily as the first totally embarrassing effort. Certainly, the condition, “detrimental to the interests of the United States,” is better than no criterion and makes reference to the actual law, and certainly the specification of a number of exceptions and allowances for discretionary moves is much better than an absolute ban with no criterion and no exceptions, but that does not make the Executive Order any better in its fundamentals.

The new executive order allows case-by-case waivers and makes room for the entry of minorities persecuted because of their religion without illegally designating that religion, those with significant contacts within the U.S. and those seeking to visit immediate family members. Since the application is so discretionary, one can expect a series of decisions that will be serious embarrassments  to the United States.

There is also the problem of creating two classes of American citizens – those from the six countries affected, about 656,000 Americans, and the rest. They would not have the same access to relatives as other Americans. Further, some of them have not yet obtained a green card, that is an identifying paper granting legal permanent residence in the United States. Would they be deported when their current visa runs out? What about students on international student visas – will their status be renewed? One can make a rough estimate that the insecurity sewn into the psyches of about 100,000 people on American soil will be serious and detrimental.

This, of course, does not include those who had been planning to study in the United States. Or those even from non-banned countries who were considering the U.S., but in light of the uncertainty, may be expected to change their plans. In addition to the effects on tourists, on refugees, on potential and actual students, there is the chill on people traveling to the U.S. on business. Certainly, in the new atmosphere of intolerance, signaled and partially unleashed by these series of Executive Orders and compounded by the actual fatal shooting of one engineer from India and wounding of another, the shooting and wounding of a Sikh in his own driveway, a very wet blanket has been thrown over the beacon of America for citizens in the rest of the world.

It took a century-and-a-half to build a reputation for tolerance. It took only 30 days to demolish that reputation, an accomplishment whether the new Executive Order passes legal muster or not. The dark side of America has once again been let loose.

Further, with respect to the greatest humanitarian refugee crisis since WWII, the American cut of the refugee intake from 110,000 to 50,000 is disastrous. Just over a third of that cut came from the countries on which a travel ban was imposed and one suspects that the Trump vision for America does not include refugees no matter what their country of origin is. Canada would have to triple our intake to make up for the difference. Whenthis initiative is conjoined with a drastic cut in the American overseas aid program just when famine is devastating Somalia, South Sudan and Nigeria and is threatening Ethiopia, “America First” takes on a very sinister meaning, a definition of America going from the humanitarian leader of the Western world to a tight-fisted cold-hearted self-centred tightwad.

 With the help of Alex Zisman