Adam Bryla, Baruch College:
JFK once said, “Domestic policy may defeat us, but it is foreign policy that can actually kill us.”
At the end of January, President Trump signed an executive order banning aliens from seven countries: Syria, Iraq, Iran, Sudan, Libya, Somalia, and Yemen. The executive order was met with intense protests in airports all over the country as well as opposition from the 9th Circuit U.S. Court of Appeals. The protests were incited when permanent residents were stopped and detained while coming back into the country.
First, one must address the fact that it’s not a “Muslim Ban.” There are over 40 Muslim-majority countries not included in this ban, as well as Muslims from European countries and other Muslim-minority countries. If it were a Muslim ban, why not ban all Muslims? Why make the ban temporary? The answer is simple. The goal of this temporary ban is to restrict incoming immigrants from certain high risk countries that are openly hostile to America and its interests. These countries are either torn apart by violence or under the control of hostile jihadist governments. The ban seems understandable for security purposes to say the least.
Debates have come from both sides of the political spectrum as to whether the order is constitutional. The right looks towards Federal immigration law to make its argument, specifically Section 1182f. The statute gives the President the authority to form a travel ban on the merits of national security. On the other hand, the left argues that Trump’s temporary ban on aliens contradicts a statute passed by Congress in 1965 known as the Immigration and Nationality act of 1965. There are several reasons why one argument is correct and the other one is meritless.
Under the Constitution, all power dealing with foreign countries is vested in the Executive Branch aka the President. The Constitution does mention a few specific exceptions to this power. These “exceptions” were obvious to everyone, mainly approval of treaties, which the Constitution states belongs to the Senate. Other exceptions include Congress’s power over international trade/commerce, the ability to start war, and to establish the requirements for the naturalization of U.S. citizens. If there is any arguable conflict between one branch and another, the presidential policy should take precedence due to the President’s inherent constitutional power in the foreign policy arena.
With that as background, let’s take a step back and look at the left’s argument. The 1965 immigration act used by the left bans discrimination against immigrants based on national origin. This is all stated specifically in Section 1152a. As it’s made clear, the purpose of the provision was to end discriminatory “national origins” immigration that was skewed to favor Western Europeans. On the other hand, President Trump’s executive order is in no way affecting the racial or ethnic composition of the nation or its incoming immigrants. The one and only goal of the order is to protect national security from a terrorist threat, which Congress itself has found to have roots in these specific Muslim-majority countries.
Even if one were to concede and for arguments sake say there is a contradiction between President Trump’s order and Congress’s 1965 goal, the issue is a matter related to foreign affairs. If there were a disagreement here, the president’s power, clearly stated in the Constitution to protect the U.S., would have greater authority than Congress’s unconvinced authority to limit the president’s denial of entry to foreign nationals.
That being said, there is no conflict. Going back to immigration law, Section 1182f, as stated before, allows the President to ban people if he thinks there is a national security problem. President Trump specifically cites this section in his executive order. The argument against this is that Section 1182f was enacted in 1952, while section 1152a was enacted several years afterward, basically amending the President’s authority to form travel bans on the basis of national origin among other things.
Keeping in mind that Trump is relying mainly on his constitutional power, and that the travel ban he directed is based on national security, not race or ethnicity, Trump’s order also relies on Obama’s provision to immigration law, Section 1187a(12). The statute empowered President Obama to waive documentation for certain aliens specifically on the basis of country of origin. This statute clearly shows Congress never repealed the President’s power to exclude classes of aliens. It specifically authorized discrimination on the basis of national origin when concerns over national security are involved. Besides Obama, President Jimmy Carter also decided to bar Iranians in 1980 due to risks that involved national security. President Trump isn’t the first President or even the second to do this. He is the third, putting to shame any clear arguments against his order.
One can argue whether this ban was rolled out correctly or if it’ll be efficient, but the constitutionality of this executive order should be unquestionable.