(February 6, 2017 / JNS) By Abraham H. Miller/JNS.org
To say the implementation of President Donald Trump’s travel ban was clumsy would be an understatement. To say, however, that the principles involved were totally without constitutional justification would be unwarranted.
Since Trump’s inauguration, nothing has dominated the political conversation as much as hatred punctuated by hysteria. The aspiration toward civility that once served as a norm for political discourse in this 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 it has in relation to the travel ban.
This temporary ban is directed at the same countries that the Obama administration named when it prohibited them from having access to the Visa Waiver Program. In addition, President Barack Obama issued 19 executive orders banning travel and a six-month order banning travel from Iraq. There was pushback on the Iraqi ban, so it was never enforced.
To be sure, removing a privilege, as in access to a visa waiver, and prohibiting entry are different things. Still, the security concerns were similar. And Iraqis would have been banned if Obama enforced his own executive order.
With the stroke of a pen, Obama changed the “wet feet/dry feet” rule affecting Cuban immigration. We will no longer allow the entry of Cubans who take to the sea to flee tyranny.
There were no mass demonstrations on the Cubans’ behalf, and the mainstream media showed no inclination to cover this story in any depth.
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, because immigration is about absorbing people from other nations about whom we make judgments.
During the Iran hostage crisis, President Jimmy Carter not only refused entry to Iranians—he deported students who were already here. He did not just implement his policy toward Iranians, but eventually toward all Shi’a 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 Appellate Court did not see it that way. The court strongly rejected the plaintiff’s petition and concluded that the U.S. 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 we had been derelict in having an immigration policy that was oblivious to the relationship between nationality, religion and terrorism.
As a consequence, the 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. The appellate courts uniformly upheld the constitutional validity of NSEERS. In Rajah v. Mukasey, the court explicitly noted how what seems to have escaped many in their reporting on the current imbroglio is that “classifications on the basis of nationality are frequently unavoidable in immigration matters…such classifications is (sic) commonplace and almost inevitable.” Obama ended the 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 U.S. 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 because of the attorney general’s use of nationality and religion as criteria for his arrest.
Iqbal’s 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, as Iqbal was a Pakistani.
Although the rounding up of Muslims for being Muslim drew outrage in the Islamic community and 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 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 to the issue. It chose not to do that, and not to rewrite the ban once constitutional issues were raised. There is also the issue of whether a travel ban and an immigration ban fall under the same legal precedents. 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.