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Last weekend seemed extraordinary. In response to President Trump’s executive order ending admission to the United States for certain citizens from seven countries that have Muslim-majorities, America witnessed the immediate detention of green card holders and Syrian refugees; lawsuits filed by advocacy groups ; and federal courts putting a temporary stop to the order; and thousands of protesters at airports. As an immigration attorney and law professor, I have no doubt that the federal judges who blocked this order got it right.
First, there is nothing in the Constitution that requires Congress to treat all people from all countries the same. To the contrary, it is well-accepted that asylum and refugee policy serves our foreign policy interests and can absolutely favor some countries over others. During the Cold War, asylum law embarrassed our enemies by giving refuge to its citizens. Famous defectors—think Mikhail Baryshnikov and Nadia Comaneci from the Soviet Union and Romania, respectively —were celebrated as proof of America’s superiority. Citizens from the Iron Curtain countries and Cuba just had to show up, and they got the benefit of immigration laws that practically showered them with asylum and green cards, a process that was more rigorous for nationals from other countries.
...since 1980, the United States has resettled three million refugees and not a single one has committed an act of terror.
Second, as much as preferential treatment for some refugees over others is allowed by Congress, stopping refugees by the president is not. In the 1980s, President Ronald Reagan believed that the rise of democratically-elected socialist leaders in Central America was going to spread Communism and defeat democracy in our country.
Although the Iran-Contra affair exposed his administration’s covert and undue interference, less well known was his administration’s de-facto end of asylum for Central American refugees who had supported the socialist governments. The INS subjected those asylum seekers and refugees to detention, pressured them to leave without having their asylum claims reviewed, and had individual letters sent to immigration judges advising against grants of asylum. And these efforts worked, at least at first. Whereas asylum seekers from Iran, Afghanistan and Poland were admitted at rates between 30 and 60 percent, asylum seekers from Central American countries were granted at rates under 3 percent.
It was a lawsuit, American Baptist Churches v. Thornburgh , that exposed and ended these kinds of abuses. In this respect, President Trump’s executive order mirrors the unlawful actions by the Reagan administration. Congress has the right to end all asylum and refugee protections, but as long as those protections exist, the president cannot selectively deny them. That is the heart of the claim against the Trump administration, and it is a strong one.
Third, the Trump administration’s claims that the executive order advances national interests are unraveling quickly. If the national interest is served in targeting the citizens of the seven countries, the administration will have to explain — to a judge with facts, not to the media with spin — how lawful permanent residents were initially included, and then ultimately excluded . They will further have to explain how the seven countries — supposedly a hotbed of terrorism because of their Muslim-majorities—exclude all citizens of similarly-situated neighboring countries that happen to be engaged in ongoing business dealings with the president’s companies. They also will have to explain how this order is even needed, given that, since 1980, the United States has resettled three million refugees, and not a single one has committed an act of terror.
The existing vetting works . We already have policies in place that exclude all known and suspected terrorists from stepping foot into our country. In 2015, the Supreme Court upheld the denial of a U.S. citizen’s request to have her husband, an Afghan national, to join her and live in the United States. The State Department had information that the man had terrorist ties, and the Supreme Court ruled that the federal agency could both deny the husband’s entry into the United States, citing to national security reasons, and not disclose the exact reason why.
Congress has the right to end all asylum and refugee protections, but as long as those protections exist, the president cannot selectively deny them.
But this is where the circus can end. If it is true there is a national interest in banning the people on the administration’s list, Congress simply has to pass a law today stating as such. If it does, courts will defer to the acts of Congress and presume its policy is indeed in the national interest. Equally true, Congress can end the executive order with a simple act saying it is against the law. Within days of the ban, a number of Senators, including Senator Chuck Schumer (D-NY), Senator Diane Feinstein (D-CA), and Senator Chris Murphy (D-CT) announced plans to introduce such legislation as soon as possible.
This is significant because the act of Congress, not an executive order, is the proper means of resolving refugee and asylum admissions. The Supreme Court essentially ruled as such in 1952 , when it struck down Harry Truman's executive order directing the Secretary of Commerce to take possession of and operate the nation’s steel mills, that "...[t]he President's power, if any, to issue the [executive] order must stem either from an act of Congress or from the Constitution itself."
The founders envisioned that Congress would be the most powerful branch, a role that it abdicated over the past eight years by passing legislation at about half the rate it did during prior presidential terms. Congressional action could and should end a White House and judiciary showdown. Wouldn’t it be something if it is President Trump who makes Congress great again?