The world has closely been watching the chaos that has ensued in implementing and staying President Trump's January Executive Order (the “Executive Order”) announced on January 27, 2017. As everyone knows, the Executive Order bars citizens of Iraq, Syria, Iran, Yemen, Somalia, Sudan and Libya from entering the United States for 90 days, suspends admission of refugees for 120 days and puts Syrian refugee admissions on hold indefinitely. In 2011, Obama’s State Department stopped processing Iraqi refugee requests for six months. I am constantly asked why is there outrage over President’s Trump’s Order but not President Obama’s Order?
Before we look at the merits of the Orders, the first glaring distinction between these Orders is that one was passed by Congress in 2011 with bipartisan support after discussion, revision and tremendous input from White House counsel. The other was drafted by Steve Miller with in-put by Steve Bannon and Trump himself--nobody else. It was not discussed with White House counsel, the Department of State or the Department of Homeland Security. Customs and Border Protection who was charged with implementing the order were only notified a few hours before implementation.
As to the merits, Trump claims "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." Well are these Orders the same? On a very basic level, I must say yes. They both limit immigration into the United States in the interests of national security. But when you dig a little deeper and read the actual text there is nothing similar about them.
President Obama’s suspension was in response to a failed attempt by two Iraqi citizens to send money and weapons to Al-Qaida. The Iraqi citizens lived in Bowling Green, Kentucky and entered the USA after lying about their past terrorist activities. The FBI arrested the two men for actions committed in Iraq and trying to assist foreign terrorist groups. Thankfully nobody was injured even though certain individuals in the Trump Administration have recently described this incident as the Bowling Green Massacre.
President Trump’s ban is preemptive. While I agree, it is far better to be preemptive than to deal with the aftermaths of a terrorist attack, there must be a rational, constitutional basis for the Executive Order that does not discriminate based on religion. None of the refugees or immigrants from the seven countries targeted by the ban have been implicated in any fatal terrorist attack in the United States (although 2 non-deadly attacks implicate citizens of Somalia and Iran). In fact, the perpetrators of 911 came from Saudi Arabia, United Arab Emirates and Egypt. None of these countries are mentioned in the current President’s executive ban, which makes the argument that it is in the interest of national security very weak.
While President Obama’s ban simply paused the processing of refugee visas for 6 months, President Trump’s Executive Order is a blanket ban. It denies entry to lawful permanent residents who have already been granted the right to live permanently in the USA. It also denies entry to dual citizens and those already issued visas to enter the USA. Further, it bars Syrian refugees indefinitely until President Trump (and nobody else) thinks it’s safe for them to be admitted to the United States. President Obama did not issue a blanket ban on visitors from the seven countries. He also did not retroactively prohibit admission to lawful permanent residents without due process. President Obama’s suspension was also limited to refugees.
I also get told that the seven countries on the list were countries picked by the Obama administration not the Trump administration. What people are referring is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 signed into law by President Obama revising the visa waiver program. The visa waiver program allows citizens of certain countries entry to the USA without a visa for up to 90 days. Under the 2015 legislation, citizens of those 38 countries who had traveled to Iraq, Syria, Iran, and Sudan after March 2011 were no longer eligible for the visa waiver. Libya, Yemen, and Somalia were later added to the list. The 2015 Act also complicated the visa application process for citizens of those countries but did not prohibit them from entering the USA.
President Trump’s order certainly differs from the December 2015 law in its scale. It violates commitments the USA has made under international law and quite frankly is imprudent policy which only bolsters the claims of Jihadist groups that the U.S. is waging a war on Islam.
A quick fix for the Trump Administration is to withdraw the order and issue a new one that addresses its current pitfalls. If not, the United States Supreme Court will opine on the stay (spoiler alert-the Supreme Court does not like to hear cases where there is no final order in place) and then send the case back to the District Court for trial on its merits. That decision will again most likely be appealed to the Court of Appeals and then ultimately it will go back to the Supreme Court for review of the final order. That is a lot of time our President will be focusing on litigation instead of governing our country.
Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration or under her twitter handle law_immigration.
