Trump’s Order on Immigration: Constitutional or Not?

Trump’s executive order on immigration has set the Internet afire in a dizzying array of memes and vitriolic rants about the president’s bold actions. Those who are dishonest will call it a “Muslim ban” predicated on religion. Of course, that’s absurd for those who actually read the executive order. On the other side,  Trump’s supporters defend all his actions in the name of national security. Well, I’m hoping I can cut through the emotion in this order and take a closer look to see if this executive action will pass the constitutional muster.

The order does several things, mainly suspending the refugee immigration program for 120 days and banning immigration from seven countries for 90 days until procedures and protocols for extreme vetting can be verified to the administration’s satisfaction. These are not unprecedented actions as other presidents have temporarily suspended immigration from certain  countries over the years. The New York Times has called the order unconstitutional on the grounds of a 1965 law which prohibits immigration discrimination from specific countries. But the NYT has not been known to look at nuances in regards to issues it doesn’t agree with, so take their view with a grain of salt.

Where this issue becomes interesting and problematic for Trump is in regards to the widely reported detention of certain immigrants or travelers, if you will, from the stated seven countries who had previously been granted visas. A federal judge in New York has ruled that their rights have possibly been violated. The judge may have a point, even a constitutional one. There’s one constitutional clause which prohibits Congress from enacting any law retroactively. That is, if it passes a new tax law today, they can’t say it’s effective starting January of 2016. That would be unconstitutional. Likewise, a logical argument could be made that executive orders are bound by the same principle, and therefore, by extension, anyone granted a visa prior to the issuing of the order would not be affected by the order.

However, this too is problematic, because the executive branch has been given a lot of leeway in regards to  national security.  It can terminate the visa of anyone at any moment if they feel that person poses a threat to security. So what’s not clear, and what the courts may have to sort out is at what point is a blanket order like this valid in regards to those previously given the green light into the country?

On Saturday night, a spokesperson from the Department of Homeland Security stated that green card holders from those seven countries were not being stopped by immigration. If that is indeed the case, that would be a smart move by the Trump administration. I do not know what rules the DHS were given in carrying out this order, but it does seem to be a little haphazard at this time, which is never a good thing in the age of Twitter. And when that happens, unfortunately, innocent people get caught in the middle.

I think it’s clear that Trump has the authority to block entry into the US based upon national security interests, even if it targets certain countries. It is also clear that the courts have leeway to curtail and adapt that order based upon legal precedent and constitutional law.

Of course, people have to make up their own mind whether or not they agree with the president’s actions. I think, however, we can all agree that Trump’s presidency is not lacking in the controversy category.

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