Charles Dickens famously observed that the law can be an “ass” and an “idiot.” A slightly different conclusion is warranted from the blowup over the legality and Constitutionality of the ban imposed by President Trump via Executive Order (EO) on travel from seven Middle Eastern countries The real asses and idiots are those who are turning logical and common-sensical cartwheels trying to show that the courts should overturn the ban – along with the suspension of refugee admissions.
The proceedings generated so far by the Trump EO have revolved mainly around procedural questions – like whether states like Washington are entitled to bring suits challenging actions in areas like immigration that are federal government preserves, and whether the administration should have taken matters to an appellate court rather than staying in the district court that issued the restraining order blocking implementation of the ban. And these questions are all important. (This New York Times analysis of the oral arguments before the appellate court yesterday, however, could not make clearer the judges’ interest in substantive issues like whether the countries in question really do pose threats to U.S. national security).
Still, it’s altogether possible that the fate of the ban – and future such measures – ultimately will turn on an apparent contradiction in U.S. immigration law. On the one hand, the 1952 modification of the 1924 Immigration Act holds that:
“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.”
On the other hand, a 1965 amendment to the law prohibits barring immigration on the basis of race, sex, nationality or place of birth. So that would seem to prevent the Trump administration from blocking entry by inhabitants of designated countries.
But resolving the conflict requires nothing more than engaging in thought. For obviously, the aim of the 1965 amendment was to remove the stain of racial, religious, and other forms of prejudice from American immigration policy. Until then, inflows had been governed by a series of quotas based on the national origins of the U.S. population as of 1890 – which of course was overwhelmingly from the white northern and western European countries. For good measure, immigration from Asia was completely eliminated.
Just as obviously, the Trump EO in question has nothing to do with such irrational – and intrinsically noxious – discrimination. It’s based on a national security judgment – the seven countries affected by the (temporary) travel ban have been classified by the previous administration and by Congress as lands where a “foreign terrorist organization has a significant presence,” where terrorists enjoy a “safe haven,” or where the government “has repeatedly provided support of acts of international terrorism.”
The seven countries singled out are Muslim majority countries – one reason evidently leading opponents to describe the ban as a “Muslim ban.” But the travel ban’s strikingly limited purview easily debunks that claim. As many of these opponents have also noted, travel from dozens of Muslim majority countries is completely unaffected. It’s true that these (massive) exceptions may make the EO either inconsistent or incompetent. Or both. But judges are not supposed to rule on such grounds, especially where foreign policy is concerned. The large number of un-banned Muslim majority countries is also plainly much more important in determining the administration’s intent than statements made by the president, or by his advisers, during his campaign for the White House.
Moreover, Mr. Trump’s immigration critics seem to have forgotten that, when refugee admissions are resumed (after 120 days), the relevant U.S. law will not only permit but require an explicitly religious test in part. For persecution based on religion is one of the forms of persecution refugee applicants must demonstrate to gain entry.
Finally, as noted in the TIME article linked above, even the 1965 immigration policy change contains a provision that could justify the Trump administration measures. It “allows the president to deny anybody entry to the U.S. under special circumstances.” Sure, anyone can question whether current circumstances qualify. And Congress has every right to propose and pass amendments that would describe these circumstances more precisely. But for the time being, they are the law of the land, and by definition the President has used his judgment to craft a response. If the judiciary can challenge judgments like this willy nilly, why on earth do we bother holding elections for president?