First Amendment Friday: The constitutionality of Trump’s immigration executive orders
March 17, 2017
On Jan. 27, seven days into his presidency, Donald Trump signed an executive order aimed towards immigration policy reform and national border control.
A few of the changes enacted by this plan included the cutting down of the number of refugees admitted to the United States from 110,000 to 50,000, suspending all refugee admission through the U.S. Refugee Admissions Program for 120 days, requiring the institution of uniform screening standards for immigration programs and banning the entry of travelers from Iran, Syria, Yemen, Iraq, Somalia, Libya and Sudan.
While these seven nations have often been currently referred to by the media as “Muslim-majority,” or with a predominantly Muslim population, the U.S. government cites the current state and stability of their national governments as the main point of concern and consideration for singling out certain countries for further examination.
“When you think of a country like Syria, Syria doesn’t really have a working government at the present time. There’s a great deal of the country that’s technically under the control of ISIS, and the central government has no idea what’s going on there or who’s doing what,” Dr. Frances Edwards, director of the Master of Public Administration program at San Jose State University, said. “If you deal with an internal government that can’t get arrest records for their people, certify birth records for their people or even a person’s identity—you have no idea who that person is that you’re importing into your country.”
The order’s implementation was met with a variety of public reactions; while some embraced it as an effort towards “protecting American lives and limbs from radical Islamic terrorists,” as Arizona’s Senator Al Melvin tweeted a day after the proposal was announced, others were less welcoming to the policy and expressed their discontent through participating in the protests held at many of the country’s major international airports in the following days.
In the literal sense, neither of Trump’s immigration executive orders violate the First Amendment, as they do not infringe on the rights of United States citizens, either with single citizenship or with dual citizenship ties to any of the countries specified in the orders. Although the populations of the nations mentioned are indeed predominantly Muslim, the religious freedom of United States citizens, as detailed by the words “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” are not compromised by these plans.
However, the lines defining First Amendment values—such as the creation of a safe environment for individuals to safely express their religious identity, the freedom to voice one’s thoughts and ideas without fear and the importance of tolerance and respect for one another—are a bit more blurred. Trump’s executive orders regarding immigration have added fuel to a growing anti-Muslim sentiment in the United States- and during his presidential campaign, Trump did assert one of his main goals to be a “complete shutdown of Muslims entering the United States.”
“I’m totally fine with legalized immigration; I just disagree with the idea of illegal immigrants being allowed to stay in the country, especially with the benefits that other civilians in the country who are legal receive,” Harker public forum debater Raymond Banke (10) said. “If you’re a citizen of the country, I feel that you should be prioritized.”
Among the responses to the plan from government officials and politicians was U.S. District Judge James Robart’s suspension of the order nationwide after the state of Washington challenged its legality, a ruling a three-judge 9th U.S. Circuit Court of Appeals upheld. On Feb. 9, Trump then tweeted the message “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” in response to Robart’s actions, after the Court of Appeals’ decision was finalized.
“The fact that this is just a subset of all predominantly Muslim countries suggests that this was not the only criterion, and that national security is an area where the president has a lot of discretion,” Dr. Bruce Cain, professor of political science at Stanford University, said. “The bigger problem is that so far, no refugee from any of these countries has committed an act of terrorism on U.S. soil, so this will go to court. The broken state hypothesis is, on the surface, plausible enough to give Trump a better shot at getting court approval when the order is challenged.”
Trump then signed a revised version of his immigration executive order on March 6, more than a month after his first order was approved. The second executive order clarified the traveling rights of green card holders and individuals with valid visas and also removed Iraq from the list of seven countries specified in the first order.
“I think the main reason Iraq has been removed is that there are so many people in the pipeline coming from Iraq who have worked for the United States army and are leaving Iraq because they are under some threat of persecution or some sort of hostile action by people who are not sympathetic to the United States and its relationship with Iraq,” Dr. Edwards said. “With this executive order, people who were already in that pipeline and to whom we owed some debt of gratitude were now also being prevented from coming into the United States. By taking Iraq off the list, they solved that problem.”
According to a report released by the Washington Post, some of the difficulties experienced by travelers attempting to enter the United States after the first order’s enaction can be attributed to the fact that the plan was put into effect almost immediately after it was signed, leaving the affected government agencies, such as the Transportation Security Administration (TSA), little time to prepare for and organize their own responses to the changes brought about by the new policy.
Another source of confusion for federal authorities and the general public alike in the wake of the introduction of the order can be drawn back to the plan’s approval process, which was different from the procedure previous presidential executive orders had gone through in the past.
While the formulation of executive orders usually involves correspondence between the president and his party’s congressional leaders, Trump instead privately consulted members of Congress without informing Republican party leadership and ordered the individuals he discussed the policy with to sign non-disclosure agreements. The order also failed to reach the Office of Management and Budget, the government agency responsible for informing any groups affected by the order of any changes to their own policies or customs.
Trump’s second immigration executive order was put into effect only yesterday; at this point, only time can tell whether or not these new policies would settle or prolong the division in opinion Americans are currently facing regarding the status of immigrants and travelers from other countries to the United States.