Guest Column – Campaign promises meet real-world reality

Date Published: 
February 2, 2017

We are a nation of immigrants. The inscription at the base of the Statue of Liberty says it most succinctly: “Give me your tired, your poor, your huddled masses yearning to breathe free…” That inscription has welcomed many to our shores. The Declaration of Independence established our core values and gave our country a moral vision to guide us.

President’s Donald Trump’s sweeping executive order this week has suspended the refugee program for four months, banned nationals of seven Muslim-majority counties for at least 90 days and banned indefinitely those refugees fleeing Syria. A federal judge said that refugees arriving at U. S airports on Saturday cannot be sent back and will be given hearings.

So much for the Statute of Liberty being a beacon of light welcoming people to our shores.

United States history tells the story of open immigration from the inception of the U.S. Constitution, because our borders were open to anyone for about 100 years. The Constitution gives the power to the Congress to establish uniform rules over immigration, and not the president, except where Congress has delegated that power.

In the 1880s, Congress began passing the first restrictive laws on immigration, against Chinese immigrants, which was ironic, because the Chinese were initially imported as a cheap source of labor for our industries.

While the Supreme Court has sanctioned Congress’s plenary power over immigration, it ruled that an alien could not be denied their Fifth and 14th Amendment rights. Now Trump’s executive order has run into a new constitutional issue, concerning the First Amendment and the establishment clause.

His order effectively bans immigration from seven Muslim-majority countries but allows certain refugees, from minority religions in their country of origin, seeking asylum. Trump was quoted as saying that it was intended to give priority to Christians seeking asylum. The establishment clause precludes preferential treatment of religions but, so far, it has not been applied to immigrants in this kind of case. But it is a good guess that this part will be held unconstitutional.

But the damage has already been done to our foreign relations and our fight against ISIS. Undoubtedly ISIS will use this Muslim ban as part of their propaganda to attract adherents to their cause. Thus, it will affect our national security.

Crowds gathered at airports on Saturday to protest this change in policy. Many immigrants with proper visas and Green Cards were stopped and detained. Those with Green Cards who have lived in the U. S. for decades were being blocked. Even an American citizen was stopped and detained for four hours. Custom officials seem to be blindsided by the new policy and were unsure of how to enforce it. The executive order was not cleared by those in the State Department who were no longer in their posts.

If one reads Trump’s order and parts of the immigration law, one finds a fairly complex legal language. The core of his order, however, being based on national origin, is patently discriminatory. Now Trump may claim that he has the power from a 1952 law, but the Congress very plainly restricted this power in 1965, wanting to protect American citizens who may wish to bring in family members or a foreign-born spouse. Thus, discrimination between immigrant groups was clearly outlawed by Congress in its 1965 immigration law.

Presidents, to be sure, have used their power under the 1952 law to bar certain groups, but it has not been used to bar an entire nationality. President Jimmy Carter, for example, used his power in the 1980 Iranian hostage crisis to bar certain Iranian students and tourists.

Another part of Trump’s order goes further and bans those that do not support the Constitution. There is no statutory requirement that non-citizens visiting the United States have to swear allegiance to the Constitution. His order goes beyond statutory requirements for immigrants and is arguably unconstitutional, because his executive action trespasses upon Congressional prerogatives.

Trump’s executive order was pushed though hastily, mostly to fulfill a campaign promise, and was not scrubbed by the appropriate executive agencies. Because of lack of forethought and planning, its impact has fallen harshly on families arriving on Saturday. In one case, a child was being held in refugee camp and was told that they could not see their family again. What we are seeing here is wild campaign promises being implemented into real-world governing. It just doesn’t work.

Perry J. Mitchell is a retired professor of political science living in Ocean View who has taught international relations for 35 years.