The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Responding to Trump's executive order

January 30 2017 30 January 2017


Shadi Hamid’s reaction to Trump’s now infamous executive order, temporarily suspending the U.S. refugee program and halting visas to citizens of several Muslim countries, is worth a read:

Some of the stories, after President Trump issued his executive order targeting Muslim immigrants, remind me of what I saw in the Middle East. No one has been killed, of course. But when an Iraqi who risked his life an interpreter for the Army arrives in New York only to be denied entry, it has the hallmarks of a different world, one he probably thought he had left behind: the fear of not knowing; the manipulation of law; the capriciousness of strongmen in midflight; and families divided in the name of politics

Benjamin Wittes bluntly calls the EO “malevolent.”  Acknowledging that the order is now tied up in litigation, because it was so poorly and incompetently crafted and therefore unlikely to be very effective from a legal point of view, his broader point is that its stated purpose — “detecting individuals with terrorist ties and stopping them from entering the United States” — is not the real purpose at all:

Put simply, I don’t believe that the stated purpose is the real purpose. This is the first policy the United States has adopted in the post-9/11 era about which I have ever said this. It’s a grave charge, I know, and I’m not making it lightly. But in the rational pursuit of security objectives, you don’t marginalize your expert security agencies and fail to vet your ideas through a normal interagency process. You don’t target the wrong people in nutty ways when you’re rationally pursuing real security objectives.

When do you do these things? You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.

David Bier at the Cato Institute has a good overview of arguments supporting the conclusion that the ban is illegal:

Mr. Trump appears to want to reinstate a new type of Asiatic Barred Zone by executive order, but there is just one problem: The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin, replacing the old prejudicial system and giving each country an equal shot at the quotas. In signing the new law, President Lyndon B. Johnson said that “the harsh injustice” of the national-origins quota system had been “abolished.”

Nonetheless, Mr. Trump asserts that he still has the power to discriminate, pointing to a 1952 law that allows the president the ability to “suspend the entry” of “any class of aliens” that he finds are detrimental to the interest of the United States.

But the president ignores the fact that Congress then restricted this power in 1965, stating plainly that no person could be “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.” The only exceptions are those provided for by Congress (such as the preference for Cuban asylum seekers).

Andrew McCarthy of National Review pushes back, invoking the executive’s strong powers in matters of foreign affairs and national security:

At issue is a matter related to the conduct of foreign affairs – a matter of the highest order of importance since it involves foreign threats to national security. If there were a conflict here, the president’s clear constitutional authority to protect the United States would take precedence over Congress’s dubious authority to limit the president’s denial of entry to foreign nationals.

But there is no conflict.

Federal immigration law also includes Section 1182(f), which 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 non immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate”

For the time being a federal judge has granted a stay on deportations for those captured under the ban who were detained upon arrival in the U.S. even though they had valid visas. Sixteen state attorney generals have denounced the EO as unconstitutional, and hundreds of lawyers rushed to airports all over the U.S. this weekend to offer free legal help to detainees caught by Trump’s executive order.. Noah Feldman calls the events of the last few days a win for the rule of law, for now:

Eventually, Trump may figure out how to use the legal system to achieve his goals instead of work against it.

But the pattern set in the nearly 48 hours after the executive order was issued is likely to recur: Such overreach from the Oval Office will be met by rapid-fire, grassroots opposition from the legal side of civil society.

The courts are going to be sympathetic; judges don’t like to see the legal system being treated cavalierly. The most important lesson of the opening salvo in what will soon be a full-blown war is that the Constitution and laws of the U.S. are a formidable bulwark against the arbitrary exercise of presidential power.

So far the Trudeau government has done its best to thread a difficult needle, refusing so far to directly criticise the substance of Trump's travel ban, all the while continuing “our longstanding tradition of being open to those who seek sanctuary,” to borrow the words used by the new Minister of Immigration, Refugees and Citizenship, Ahmed Hussen.

Michael Geist considers  what the Canadian response should be:

No doubt a close relationship based on friendship and mutual self-interest is preferred. However, with Trump signing an executive order eliminating Privacy Act protections for Canadians, the Canadian government must now stand ready to re-consider information sharing programs with the U.S. With Trump signalling his support for torture, the Canadian government must be ready to stop programs that could implicate Canadians in the same activity. With Trump instituting immigration policies that run counter to fundamental values of equality, the Canadian government must be prepared to say so. And when words are not enough, we must be ready to act.

Photo licensed under Creative Commons by ToastyKen

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