Issue Report: Trump immigration ban

Is Trump's ban on immigrants & refugees from a few Muslim-majority countries justified?

On January 27, 2017, President Donald Trump executed a promise from his presidential campaign: banning immigration from 7 Muslim-majority countries and suspending the admission of refugees. The executive order temporarily suspends all refugee admissions to the US for 120 days and indefinitely suspends admission of refugees from Syria. This at a time when millions of displaced people from Syria, Iraq, Myanmar, and elsewhere flee war zones and oppressive regimes. Trump barred all entry to the US by natives of seven Muslim-majority countries, including Iran, Iraq, Syria, Yemen, Libya, Sudan, and Somalia. The ban did not include countries with long-standing problems with terrorism, including Saudi Arabia, Pakistan, and Egypt. While at first it was unclear whether green-card holders from the seven countries were prohibited from entry, the White House clarified that they are allowed entry under a waiver from the ban. The debate surrounding the executive order has been highly contentious and protested, with the focus centering around the the ban’s efficacy, constitutionality, morality, and political and strategic merit. Questions of efficacy concern whether the ban will help or hurt in the fight against terrorism. Constitutional questions surround whether the President has the authority to issue this type of executive order and whether the order violates due process religious rights. The sub-debate on morality asks whether the ban is fair and consistent with American values? And the final section on politics and strategy concerns whether the ban is a political win for the Trump administration and a strategically-valuable move for the United States more generally. The pro and con arguments and quotes are framed below.

Efficacy: Is the ban an effective measure to combat terrorism?

Ban lowers risk of terrorists entering U.S. from risky states

James Carafano, vice president of foreign and defense studies at the conservative Heritage Foundation said in an interview with CNBC: “This was the administration trying to get ahead of what is an emergent threat that every terrorism expert in the world recognizes. And to make sure we can cut off the pipelines, so foreign fighters don’t come from those seven countries to the United States… I think their concern was there’s a terrorist flow coming. We want to stop it. Yeah some people might be inconvenienced. We can figure that out. If someone was killed in a terrorist attack in the United States because we weren’t on watch, that’s a more unforgivable sin.”

Ban responds to rare but serious risk of a terrorist entering

Venitta Ferguson of Oklahoma City, Oklahoma, said to Time: “I couldn’t be more pleased with what he’s done. We’re in that kind of world where to ignore the possibility that even one person out of 10,000 has ill intentions is foolish.”

Temporary ban allows reassessment of risks in immigration system

Department of Homeland Security Secretary John Kelly said on January 31st that the “temporary pause” in immigration from seven countries and the admittance of refugees allows officials to “assess the strengths and the weaknesses of our current system.”

Ban merely limits immigration from Obama's "countries of concern"

Arthur Herman, "Trump's travel ban and the Democrats' big con", Fox News, January 30, 2017:

“It’s a temporary ban that effects exactly seven countries, ones on which the Obama administration already placed travel limits as ‘countries of concern'”

The ban does not target Muslims so should not cause backlash

DHS Secretary John Kelly said at a news conference “it is not – I repeat – not a ban on Muslims.”

Dotty Rhea, 68, a retiree from Savannah, Tennessee said to Time: “Nobody’s angry with them (immigrants), nobody hates them. We just need to protect ourselves.”

Proving lives saved from the immigration ban is challenging

The true “efficacy” of Trump’s immigration ban will be difficult to determine because it is impossible to fully prove that lives were saved by denying entry to immigrants and refugees from the seven countries listed in Trump’s temporary ban.

Ban assists terrorism organizations by antagonizing Muslims

Illya Somin, "Making America cruel again - Trump's executive order on refugees," Washington Post, January 29, 2017:

“On net, Trump’s order actually increases the risk to national security far more than it might reduce it. Trump and his supporters are not the only ones who want to keep Syrian refugees out of the US. The leaders of ISIS feel exactly the same way. They want to prevent Muslims from fleeing to the West so as not to reduce the number of people living under ISIS rule, and also because they fear that refugees might be influenced by Western liberal values inimical to radical Islamism. Trump’s order plays into ISIS’ hands, both by keeping out refugees and by needlessly antagonizing Muslims around the world… Trump’s order also benefits terrorists because it keeps out Iraqis and Syrians who helped US forces, often risking their own lives in the process. If you were an Iraqi or Syrian considering helping the US, would you trust American promises of refuge after this order? I don’t think I would. “

Refugees are not a significant source of terrorism

Blake Hounsel, "President Trump's First Defeat", Politico, January 29, 2017:

“If the ban was aimed at stopping terrorism, it was oddly off target… Since 1990, of the 182 radical Islamic terrorists who plotted attacks in the United States or on inbound airplanes, just two entered the U.S. as refugees. Little wonder—since refugees are among the most carefully vetted immigrant groups, and the bulk of them are women and children.”

The risk of death by terrorism is too low to justify ban

Illya Somin, "Making America cruel again - Trump's executive order on refugees", Washington Post, January 29, 2017:

“The White House claims that the order is intended to protect the US against terrorism. But any such risk is extremely small already. The average American has only about a 1 in 51 million per year chance of being killed by a foreign terrorist of any kind, Muslim or non-Muslim, refugee or otherwise. That is far less than the odds of being killed by a lightning strike. The odds of being killed by a refugee terrorist are far lower still.”

Immigration ban alienates countries US needs in fighting terror

The ban insults many of the countries the United States needs in its fight against terrorism, including the Iraqi government, which is contemplating expelling the United States’ remaining forces and advisers in the country.

Ban does not target the most terror-prone countries

The ban did not include Egypt, Lebanon, Saudi Arabia, and the UAE, all of which were home countries for the 9/11 hijackers. In addition, many wonder how Pakistan could not be included on this list. This is not to argue that these countries should be included, but solely that the ban is not rationally tied to terrorism prevention.

Visa/refugee process is unlikely way to commit terror

Values: Is the ban consistent with American values and morality?

Immigrant ban balances moral imperatives of security, openness

Trump Facebook Statement Regarding Recent Executive Order Concerning Extreme Vetting

“America is a proud nation of immigrants and we will continue to show compassion to those fleeing oppression, but we will do so while protecting our own citizens and border. America has always been the land of the free and home of the brave. We will keep it free and keep it safe, as the media knows, but refuses to say… I have tremendous feeling for the people involved in this horrific humanitarian crisis in Syria. My first priority will always be to protect and serve our country, but as President I will find ways to help all those who are suffering.”

Ban is not about religion, but terror-prone countries

Trump Facebook Statement Regarding the Recent Executive Order Concerning Extreme Vetting, January 30, 2017

“This is not about religion – this is about terror and keeping our country safe. There are over 40 different countries worldwide that are majority Muslim that are not affected by this order. We will again be issuing visas to all countries once we are sure we have reviewed and implemented the most secure policies over the next 90 days.”

Slowing immigration after years of openness is fair & American

Rich Lowry, "No Trump's immigration plan isn't 'un-American'", New York Post, January 30, 2017

“Nowhere is it written that the United States can never tap the brakes on immigration. For much of the political class and for an inflamed left, any new restriction is tantamount to melting down the Statue of Liberty. This is an ahistorical attitude that desperately needs a corrective… ‘America,’ the late political scientist Samuel Huntington wrote, ‘has been a nation of restricted and interrupted immigration as much as it has been a nation of immigration.’… In 1965, fewer than 300,000 immigrants were admitted to the United States. We have been at elevated levels for decades since then and now admit about 1 million a year. The proportion of the foreign-born population is set to hit a record in 2025. This means there is a lot of room to reduce immigration without shutting our doors entirely.”

America is not obligated to accept refugees and care for them

Jim Buterbaugh, the head of custodial work and maintenance at a public school in the western Montana town of White Hall said to Time magazine: “We’re not the world’s Social Security office. We’re not here to take care of people. I understand that people need help, but there are other ways besides bringing them here.”

Refugees can be kept safe at home by policies like "safe zones"

President Trump said in a Facebook post: “I have tremendous feeling for the people involved in this horrific humanitarian crisis in Syria. My first priority will always be to protect and serve our country, but as President I will find ways to help all those who are suffering.” One of those ways of helping those that are suffering includes creating “safe zones” in Syria. In general, by pursuing a more proactive and aggressive counter-terrorism strategy in the Middle East, Trump will secure the region and reduce the need for citizens of these countries to flee as refugees.

Refugees, immigrants who really want to be Americans can wait

Helen Megido, a 43-year-old registered nurse in Federal Way, Washington said to CNN: “[If] you want to get here, you wait your chance. You wait your turn. If they want to get to America, 3 months, 6 months — it’s nothing. They can wait.”

The ban violates American values of openness, fairness

Washington Gov. Jay Inslee called it “cruelty”. Senate Minority Leader Chuck Schumer said there were “tears running down the cheeks of the Statue of Liberty”. Hillary Clinton, tweeted, “I stand with the people gathered across the country tonight defending our values & our Constitution. This is not who we are.”

Ban violates American ideal: "give me your tired, your poor..."

The Statute of Liberty has enshrined in its steal a poem that reads: “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door.” This poem represents a core American value of openness and hope to the world and its struggling masses. And yet the ban on Muslim immigrants and refugees coming from desperate circumstances runs contrary to this value.

The ban rejects and harasses productive, deserving immigrants

One of the first people detained under the ban, Hameed Khalid Darweesh, was an Iraqi interpreter who served the U.S. military for over a decade. He said to reporters at JFK after his release, “What I do for this country? They put the cuffs on.” An Iranian woman named Samira Asgari was coming to Harvard Medical School to work on a cure for tuberculosis, but was banned from entering the country. She tweeted, “I was pretty excited to join @soumya_boston’s lab but denied boarding due to my Iranian nationality.”

Trump ban dramatically reduces refugee intake at time of need

Ilya Somin, "Making America cruel again - Trump's executive order on refugees", Washington Post, January 29, 2017:

“Perhaps most importantly, the order reduces the total permitted intake of refugees for the 2017 fiscal year from 110,000 to 50,000… The reduction in total intake is a cruel blow to refugees from all over the world, both Muslim and otherwise, including many who don’t pose any even remotely conceivable risk. The order condemns thousands of people to the risk of death and oppression or – at best – life in horrendous refugee camps.”

Ban is unfortunately consistent with U.S. history of exclusion

Savannah Cox, "Trump's Refugee Ban Isn't as Un-American as You Think", New Republic, January 30, 2017:

“Trump’s immigration order is, in fact, who we are—at least partly. Denying the poor, huddled masses entry into the country has formed the basis of federal immigration acts since their inception. Trump’s ban does not mark a grand departure from American values, but rather presents American values in their ugliest, most blatant and unapologetic form. A quick glance at the historical record shows that the ban is very much in line with how the U.S. has treated desperate people seeking entry into the country. A century ago this February, the 64th Congress of the United States overrode President Woodrow Wilson’s third veto to pass the 1917 Immigration Restriction Act. This act—for which anti-immigration and eugenics proponents such as the Immigration Restriction League (IRL) had lobbied for decades—barred “idiots, imbeciles, epileptics, alcoholics, poor, criminals, beggars, any person suffering attacks of insanity” from entering the country. The act likewise decreed that immigrants take a literacy test to determine if they represented a “desirable” or “undesirable” population…”

Immigration ban discriminates against Muslims

President Obama broke his silence after the election and stated that he “fundamentally disagrees with the notion of discrimination against individuals because of their faith or religion,” and the the ban here constitutes such discrimination.

Lawfulness : Is the immigration ban Constitutional and lawful more generally?

Founders believed President had power over foreign relations

Thomas Jefferson wrote shortly after the Constitution’s adoption, “the transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specifically submitted to the Senate. Exceptions are to be construed strictly.” Andrew McCarthy cited this quote in support of Trump’s ban in an op-ed on National Review.

Supreme Court has ruled President has power over foreign relations

In United States v. Curtiss-Wright (1936), the Supreme Court outlined “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress.”

Executive authority to issue immigrant ban found in INA 212(f)

The president’s authority to issue executive orders on immigration can been found in section 212(f) of the Immigration and Nationality Act (INA), the pertinent part of which reads as follows: “(f) 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.”

Obama's EOs set precedent for Trump's immigration ban

Kathleen Hennessey, "Obama's executive actions could open a door to successors" PBS NewsHour, December 11, 2015:

“While the White House has condemned Donald Trump’s call for a ban on Muslim immigrants as ‘disqualifying’ and ‘toxic,’ President Barack Obama may have only himself to blame if a President Trump ever succeeds in putting his plan, or some version of it, into action. In his efforts to work around Congress, Obama has made the aggressive use of executive power, particularly on immigration, an increasingly effective and politically accepted presidential tool.”

Immigrants, refugees don't have a constitutional right to enter U.S.

Robert Lastra – a US citizen, resident of South Florida, and descendant of a Cuban immigrant – said to CNN: “They don’t have the right to be here to begin with. They don’t have constitutional rights to be here. They’re here by the grace of God, just like I’m here by the grace of God.”

Ban violates First Amendment's Establishment Clause

Mark Joseph Stern, "Trump's Executive Order is an Unconstitutional Attack on Muslims", Slate, January 29, 2017

“Trump’s de facto Muslim ban is a violation of the First Amendment’s Establishment Clause, which prohibits the government from favoring one religion over another… The Establishment Clause forbids the government from making any law ‘respecting an establishment of religion.’ As the Supreme Court explained in 1982’s Larson v. Valente, ‘the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’… Trump’s executive order officially prefers Christians and Christianity and disfavors Muslims and Islam. In In addition to targeting seven majority-Muslim countries… the order directs the secretary of state… to ‘make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.’ That limitation is critical—and illegal…The purpose of this limitation is obvious when applied to the Muslim-majority countries with which Trump is concerned: It favors Christian refugees over Muslim refugees.”

Washington State’s successful complaint against Trump’s ban makes the same claim, arguing in their Second Cause of Action that Section 3 and 5 are “intended to disfavor Islam and favor Christianity”, thus “violated the Establishment Clause of the Fifth Amendment.”

Ban violates Equal Protection clause of 5th Amendment

Washington lawsuit against the Trump administration filed in federal court: “The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. Sections 3 and 5 of the Executive Order, together with statements made by Defendants concerning their intent and application, target individuals for discriminatory treatment based on their country of origin and/or religion, without lawful justification. The Executive Order was motivated by animus and a desire to harm a particular group. The discriminatory terms and application of the Executive Order are arbitrary and cannot be sufficiently justified by federal interests. Through their actions above, Defendants have violated the equal protection guarantee of the Fifth Amendment.”

Ban violates INA prohibition against discrimination

While the Immigration and Nationality Act (or INA) does give the executive some power over immigration policy, it also states that “no person shall receive any preference or priority or 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.” David Bier, an immigration policy analyst at the libertarian Cato Institute, wrote that “Trump’s new policy would run afoul of at least one if not all three of (the) restrictions — nationality, place of birth, or place of residence — depending on how it was applied.”

Washington’s successful complaint also made this claim in its Fourth Cause of Action, arguing that the EO “discriminate[s] on the basis of  race, nationality, place of birth, and/or place of residence…”

Trump may have included 7 countries because lacks business there

Ban violates due process clause of Fifth Amend

Fourth Cause of Action in successful Washington State complaint against Trump EO: “The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests without due process of law. When Congress has granted statutory rights and authorized procedures applicable to arriving and present non-citizens, minimum due process rights attach to those statutory rights. Sections 3 and 5 of the Executive Order conflict with the statutory rights and procedures directed by Congress. In issuing and implementing the Executive Order, Defendants have violated the procedural due process guarantees of the Fifth Amendment. Defendants’ violation causes ongoing harm to Washington residents.”

Ban violates INA-ensured rights for asylum seekers at ports

Washington state’s Fifth Cause of Action in its complaint: “The Immigration and Nationality Act…entitles certain non-citizens arriving at Washington ports of entry to apply for asylum and withholding of removal… the Executive Order suspends all immigrant and nonimmigrant entry into Washington by individuals from seven countries and forecloses their ability to apply for asylum and withholding of removal.”

Politics: Was the ban a political win for Trump?

The ban executes a widely known Trump campaign promise

Trump promised in his campaign to do precisely what he did with his executive order: limit immigration from Muslim countries in order to lower the risk of terrorists entering the United States. Many supporters view this favorable. “He’s going to do what he says and says what he does,” said Barbara Van Syckel, 66, of Sterling Heights, Michigan. “That’s a little frightening for some people.”

The ban demonstrates Trump's backbone and force of will

Retired social service worker Judith Wilkenroh, 72 of Maryland, said to Time that the order shows Trump “means what he says. He’s just unafraid. He’s just going ahead like a locomotive, and I like him more and more every time he does something.”

Ban shows Trump following through on Washington shakeup

Mike Honaker, a Trump supporter in a struggling West Virginia coal town said to Time: “I think he’s shaking it up, the whole of Washington, D.C., and half the country, like he said he would.”

The ban is similar to actions taken by Obama in Iraq

Trump Facebook Statement Regarding The Immigration Executive Order, January 29, 2017

“My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months. The seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror. To be clear, this is not a Muslim ban, as the media is falsely reporting.”

Ban placates the fearful that something is being done on terror

Whether fear of terrorists in the United States is rational or not, the ban gives to those that are fearful the comforting impression that something is being done to keep them safer.

The ban was hastily crafted, sowed confusion, showed ineptness

Blake Hounshell, "President Trump's first defeat", Politico, January 29, 2017

“The hastily crafted order, which sent shock waves of confusion across the U.S. government and was temporarily and partially blocked by U.S. District Court Judge Ann Donnelly, caught thousands of Muslim travelers unawares, separating family members from one another and stranding many in legal limbo… as a sheer matter of governance, it augurs poorly. Other administrations might have carefully briefed reporters on the details of the new policy, prepared the public, put exemptions in place, clarified exactly who would be affected. They might have crafted an outreach strategy to key allies to explain the president’s reasoning and hear out any concerns. The Trump team seems to have done none of that.”

Trump ban is not the same as any action taken by Obama

John Finer in Foreign Policy magazine argued that Obama’s actions on immigrants from Iraq were different because they had a narrower focus on Special Immigration Visas, there was no full ban on Iraqi refugees, the policy responded to a specific threat based on credible intelligence, and the policy was rolled out in an orderly and organized fashion.

Ban will harm American industry by denying access to talent

Ed Yong, "Trump's immigration ban is already harming American science", The Atlantic, January 29, 2017:

“The new policies could isolate American institutions from major sources of foreign talent. ‘The upshot is that, until further notice, science departments at American universities can no longer recruit Ph.D. students from Iran—a country that … has long been the source of some of our best talent,’ wrote Scott Aronson (Mehraban’s supervisor), on his personal blog.”

Ban harms a wide variety of citizens' interests

Federal Judge Robart found in his TRO ruling that halted Trump’s immigration ban: “The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom of travel… In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and mission of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.”

Immigration ban cynically makes point against Muslims