Issuing an executive order Friday, Jan. 27, restricting immigration from seven Mideast and North African countries for 120 days, 70-year-old President Donald Trump finds himself in legal hot water. Showing some legal rust, Trump allowed former New York major Rudi Giuliani, a former U.S. Attorney, to concoct his temporary entry ban, something promised in the 2016 campaign. Watching massacres by disgruntled self-radicalized terrorists in San Bernardino, Calif. and Orlando, Florida, Trump resonated with voters proposing extreme vetting of Mideast and North Afirican refugees. With former President Barack Obama and Democratic nominee former Secretary of State Hillary Rodham Clinton welcoming tens-of-thousands of Syria refugees, Trump contrasted himself, insisting on strict immigration policy and extreme vetting to protect U.S. national security.
Voters in key battleground states evidently agreed with Trump, despite Obama and Hillary calling Trump a xenophobic racist. Trump’s ban on residents from seven Mideast and North African countries threw Transportation Security and Immigration officials for a loop, detaining some Mideast and North African travelers in airports around the country. Filing for injunctive relief in Brooklyn federal court near JFK International Airport, the American Civil Liberties Union [ACLU] filed suit on behalf of two Iraqi men, held at JFK despite legal documentation. Even green card holders from six other countries, including Iran, were booted off flights bound for U.S. destinations. ACLU officials said it was going ahead with a class action suit against Trump’s executive order, citing a 1965 law banning discrimination on immigration decisions based on religion and national origin.
Trump’s critics call the travel ban of residents from Syria, Iraq, Iran, Sudan, Somalia, Yemen and Libya a ban against Muslims, discriminatory, arbitrary and hypocritical for not including Saudi Arabia. Speaking on Sunday morning talk shows, Trump’s surrogates, including Chief of State Reince Priebus, Press Secretary Sean Spicer and Senior Counselor Kellyanne Conway, all insist that Trump’s multi-country ban involves only an attempt to screen un-vetted travelers or refugees from Mideast and North African states. Citing terror attacks from sympathizers or members of the Islamic State of Iraq and Syria [ISIS] in Europe and the U.S., Trump officials insist they were trying to protect U.S. citizens. When President Lyndon Johnson signed the 1965 Immigration and Nationality Act, it attempted to stop preferences giving to European immigrants over other countries.
Libertarian Cato Institute policy analyst David Bier insists that Trump violated the 1965 Immigration and Nationality Act. “The person’s race, sex, nationality, place of birth or place of residence,” can’t be used in immigration decisions. Bier insists Trump relies on a superceded 1962 law permitting “suspend the entry” of “any class of aliens” if they disadvantage the United States. Trump’s legal problems stem from the lack of probable cause to suspend usual-and-customary immigrations rights, citing possible danger of terrorism to un-vetted immigrants or visitors to the U.S. “Donald Trump has made it very clear that this is designed to disfavor Muslims on the one hand and to favor Christians on the other,” said David Cole, ACLU’s legal director. “He told the Christian Broadcast News that was the whole purpose of it to give priority to Christians,” said Cole citing Trump’s past remarks.
Addressing Cole’s argument, Trump’s surrogates made clear the immigration ban does not involve religion but the likelihood of Mideast or North African immigrants or visitors committing acts of terrorism in the U.S. Arguing in federal court about the Constitution’s Establishment Clause or the 1965 immigration law doesn’t address Trump’s key argument about protecting U.S. citizens. Trump has no legal standing arguing that immigrants or visitors with proper documentation can be denied entry under current immigrations laws or the U.S. Constitution on the basis of preempting terrorist acts. Whatever terrorist acts Trump cites over the last eight years, including 2009 Fort Hood mayhem, 2010 attempted Time Square bombing, 2013 Boston Marathon bombing, 2015 Chattanooga shooting, 2015 San Bernardino slaughter or 2016 Orland nightclub massacre, all perpetrators had legal standing.
When Trump faces a federal judge arguing for his ban, he’s going to be hard-pressed to show that immigrants from Mideast and North African countries present a clear-and-present danger to U.S. citizens. Insisting some percentage of immigrants have ties to radical Islamic terror groups isn’t enough to compromise U.S. immigrations laws or the Constitution. ACLU attorneys don’t need to cite the Establishment Clause or 1965 Immigration Act to show there’s no probable cause to restrict immigrants or visitors with proper documentation. Speculating about future acts of mayhem doesn’t qualify as a legal restriction to ban any group of immigrants or visitors, regardless of demographics. Unless Trump’s lawyers can prove affiliations with known terror groups, a federal judge isn’t going to buy his “preemptive” argument. Fears of self-radicalization aren’t enough to keep documented travelers out of the U.S.
