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May 30 / Saeed Khan

The Effects and Implications of The Executive Order on Refugees, Immigration, Terrorism and a Nation’s Self-Identity

By Saeed Khan, February 2017

Under the guise of keeping America safe from the specter of terrorism, the Trump administration issued an executive order on January 27 that has proven to be one of the most drastic changes in the nation’s immigration policy, its posture toward refugees seeking entry to the United States and of the country’s traditional reputation for being a welcoming destination for those aspiring to a better life, in recent memory. The ambiguity of its language, its scope and its long-term consequences are causing consternation well beyond the false binary of the public debate that frames the issue as one of humanitarian impulse vs the need to keep America safe from the threat of potential terrorism.

The executive order has three basic provisions regarding refugees, immigrants and visitors to the United States. There is a 90-day moratorium on permitting entry of refugees in general, while refugees from Syria specifically are barred indefinitely. In addition, there is a 120-day bar on entry for individuals with non-immigrant visas from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. While each of these nations has a Muslim-majority population, President Trump insists his policy does not constitute a Muslim ban, despite his campaign rhetoric and that of his subordinates to the contrary.

While the text of the executive order appears limit its scope to refugees and non-immigrants seeking entry to the United States, there is considerable confusion as to its actual scope. Lawful permanent residents, i.e. “Green Card” holders had been barred from entry until the US State Department and Department of Homeland Security were compelled to issue statements of clarification that the EO did not apply that category of immigrant visas. At the same time, the exclusion of US citizens from the list of affected groups has not precluded Customs and Border Patrol from treating hundreds of Muslim Americans as second-class citizens as they attempt to return to the country. Many face secondary investigation at immigration control, including hours of additional detention where they are being questioned as to their religious and political views, in clear violation of administrative and constitutional provisions. They are also being coerced into surrendering their passports and their electronic devices for inspection of their email and social media accounts. Such “extreme vetting” appears to be occurring for Muslim US citizens whose national origin is outside the seven countries named in the executive order; irrespective of this fact, even citizens from those countries are to be constitutionally protected form such practices. The de facto impact of the executive order, however, is far different and much broader than the stated de jure scope.

There is an implicit conceit in the justifications for the current immigration related measures that prior policies were ineffective and dangerous to the security and safety of Americans, thus the need for a drastic shift toward refugees. In reality, the refugee vetting policy before Inauguration Day was stringent to say the least. The process takes a minimum of 18-24 months and involves no fewer than a dozen federal agencies and half a dozen international security and intelligence organizations. Regarding the alleged terrorism threat posed by refugees to Americans, no refugee has committed a single act of terror or murder in the United States. The killings in San Bernardino, the Orlando nightclub and the Boston Marathon are commonly invoked to assert the need for the current, restrictive policy as necessary, preventive measures. Again, none of those horrific acts would have been averted by the executive order, as they involved immigrants from countries not currently included in the ban.

Serious questions of constitutional integrity abound in light of the Trump administration’s executive orders regarding immigration and refugees. While the executive branch is perfectly within its rights to issue policy in the interest of national security and is able to exclude non-citizens, its privileging the entry of refugees from one religion and not another may be a violation of the First Amendment. Concomitantly, advocacy groups are vigorously opposing such policies.

As millions of Americans struggle to process the recent actions of the Trump administration and their legal, political and societal ramifications, The immigration-focused executive order is being successfully challenged in court, with five different federal judges imposing stays on the implementation and enforcement of the order. The court injunctions provide a trenchant study in civics literacy to gauge the mechanisms of how the Constitution’s checks-and-balances being exercised between the executive and judicial branches. Along with court challenges, the public reaction to the executive order has been swift and strong. Rallies, protests, marches and public mobilization have been a daily occurrence in a still very young presidency.

For a nation of immigrants, the executive order affecting refugees and others goes beyond mere discussions about terrorism, security, compassion and humanitarian efforts. It strikes at the nation’s pathology and the ontology of its citizens. The demographic shifts, the effects of globalization, the recalibration of America’s economic, military and diplomatic station on the world stage augur a sharp departure from the predictability of the nation’s future trajectory. But insularity and intolerance has never been a sufficient or successful antidote to insecurity, even in the name of security. For a liberal democracy, the consequences of an executive order may prove to extend well beyond its author’s term in office to redefine national policy and philosophy alike.

Saeed Khan is a senior research fellow with the CSC.

One Comment

  1. Rafael Costa / May 31 2017

    Dear Professor,

    The Executive Order on Refugees, Immigration, Terrorism and a Nation’s Self-Identity shows that we have learned nothing with “mass atrocities”, dictatorial regimes (e.g., Yugoslavia, the South American dictatorships, apartheid , among others), and the absence of effective citizen participation. Moreover, the classic paradigms of Rule of Law seem insufficient to deal with the social changes.

    Thus, it seems to me that we need a new paradigm of Rule of Law, which differs from modern constitutionalism because the individual or the State is not at the epicenter of the model, but society itself, with the consequent recognition of the “ownership of human rights” by collective persons, such as communities and nationalities, adding a new meaning to citizenship.

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