Trump’s Travel Ban Was Clumsily Launched but Legally Justified
JNS.org – To say that the implementation of President Donald Trump’s travel ban was clumsy would be an understatement. To say, however, that the principles involved were illegal would be incorrect.
Since Trump’s inauguration, nothing has dominated the political conversation so much as hatred, punctuated by hysteria. The country has been consumed in conflagration, riots, mass demonstrations and physical attacks.
In no other policy area, perhaps, has emotion dominated the intellect as much as in that of Trump’s travel ban.
This temporary ban is directed at the same countries that the Obama administration barred from the Visa Waiver Program. In addition, President Barack Obama issued 19 executive orders banning travel from Iraq. There was pushback on the Iraqi bans, so they were never enforced.
To be sure, removing access to a visa waiver and prohibiting entry are two different things. Still, the security concerns were similar. And Iraqis would have been banned if Obama had enforced his own executive order.
With the stroke of a pen, Obama changed the “wet feet/dry feet” rule affecting Cuban immigration. Because of Obama’s actions, the US will no longer allow Cubans who fled their homeland by sea to enter the US legally.
There were no mass demonstrations on the Cubans’ behalf, and the mainstream media showed no inclination to cover the story in any depth.
Yet today, we are bombarded incessantly on the news about how Trump’s executive order constitutes religious and nationality discrimination, and is unconstitutional. There is, however, abundant legal precedent for both religious and nationality discrimination.
During the Iran hostage crisis, President Jimmy Carter not only refused entry to Iranians, but he deported some students who were already here. He did not just implement this policy against Iranians, but eventually against all Shia Muslims.
The Iranians challenged Carter in court. In Narenji v. Civiletti, the Iranian plaintiffs argued that an immigration policy singling out non-immigrant students by their nationality violated the Equal Protection Clause of the Constitution.
The US Appellate Court did not see it that way. The court concluded that the US attorney general holds wide latitude to draw distinctions on the basis of nationality in matters of immigration.
Decades later, the 9/11 Commission echoed those sentiments, noting that terrorists’ visas were part of their arsenal and that the US had been derelict in having an immigration policy that was oblivious to the relationship between nationality, religion and terrorism.
As a consequence, the US government implemented the National Security Entrance-Exit Registration System (NSEERS), which applied only to 25 Muslim-majority countries and North Korea.
The NSEERS program was challenged on the basis of discrimination against Muslims. Numerous US appellate courts uniformly upheld the constitutional validity of NSEERS. In Rajah v. Mukasey, one court explicitly noted that “classifications on the basis of nationality are frequently unavoidable in immigration matters…such classifications is (sic) commonplace and almost inevitable.” Obama ended the NSEERS program in 2011.
In the wake of the 9/11 attacks, Attorney General John Ashcroft launched a program to detain and investigate immigrants from Muslim-majority countries who had arrived in the US during the previous two years. Among those swept up in this program was Javaid Iqbal, a Pakistani national who had long overstayed his visa and was illegally working as a cable television installer in Brooklyn. Iqbal sued the government for wrongful imprisonment, and his case went all the way to the Supreme Court — which denied him a hearing.
In very strong language, Justice Anthony Kennedy wrote, “The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al-Qaeda, an Islamic fundamentalist group. Al-Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims.”
The verdict clearly sanctioned a disparate impact on Arab Muslims, specifically, and Muslims generally (Iqbal was a Pakistani).
Although the post 9/11 program drew outrage in the Islamic community and there were a few newspaper editorials blasting the program, it generated nothing remotely like the mass demonstrations and media attacks against Trump’s immigration ban.
The constitutional issues raised by the Trump administration’s ban are complex, and the conflicting rulings by a federal judge in Seattle and one in Boston show that there are no simple answers regarding the ban’s constitutionality. At the time of this writing, the Department of Justice is appealing the Seattle ruling to the Ninth Circuit.
Clearly, the Trump administration could have circumvented the current crisis by taking a more cautious approach on the issue. It chose not to do that. The argument, however, that the administration is in clear violation of the Constitution seems to be overly confident in view of previous court decisions.
Ultimately, it will take the Supreme Court to resolve this issue. For no matter what the Ninth Circuit decides, the verdict will be appealed.
Abraham H. Miller is an emeritus professor of political science, University of Cincinnati, and a distinguished fellow with the Haym Salomon Center. Follow him on Twitter @salomoncenter.