President Trump’s fabled ban on immigration from Muslim-majority nations has come to fruition, receiving an unsurprisingly swift condemnation from many angles and causing logistical snarls at gateways across the nation.
At its core, the language used in the ban is vague to its own detriment; border control and customs officials, as well as airlines and even federal lawmakers, are by and large unclear as to whom the ban actually applies. Both “immigrant and nonimmigrant entry into the United States” are suspended until April 25, 2017 from Iraq, Iran, Syria, Libya, Sudan, Yemen and Somalia; diplomats are very clearly exempt, but for green card holders the policy has been thus far inconsistent. CNN reports that, as they understand it, green card holders from the seven countries named above are able to board and fly on a U.S.-bound plane, and upon landing will be subject to an interview and the further collection of personal information to determine if the person poses a risk to national security. Homeland Security Secretary John Kelly released a statement on Jan. 29 reaffirming the conclusion that “lawful permanent resident status will be a dispositive factor in our case-by-case determinations,” essentially exempting green card holders from the ban. Allegations from several airports around the country indicate that in the early hours of the ban officials were uncertain of its specificities and may have incorrectly detained some green card holders.
Similar confusion has erupted for dual citizens, with the State Department initially stating that a dual-national in one of the seven named nations and the United States would be turned away before later rescinding that statement.
Companies who employ dual citizens or those holding any type of affected visa, including Google, are cautioning employees to not leave the United States until more clarity on how and when such people can re-enter is available.
The situation is further muddled by decisions from federal judges throughout the nation, which have provided temporary respites from the deportation of those who arrived in the US after the ban and with legal visas. One judge in Virginia further ruled that officials must provide all legal permanent residents detained at Dulles International Airport with access to a lawyer. While a complicating factor, these rulings stop short of dismantling the order on a Constitutional level, meaning that the Department of Homeland Security must observe both court orders and the executive order where applicable.
Republican Senators John McCain and Lindsey Graham have put out a joint statement calling the order “hasty” and “not properly vetted,” noting that the order went into effect immediately upon being signed after minimal — if any — consultation with the Department of Justice, the Department of State, the Department of Defense or the Department of Homeland Security. The statement further adds that the ban has inadvertently banned cooperative efforts such as Iraqi pilots visiting American military bases to coordinate in the fight against ISIL, and that ostracizing Muslims from the US may actually aid radical groups in their recruitment efforts.
Regardless of the long-term implications of the act (and not to mention the possibility that it will be extended or broadened) in the short term, chaos has ensued. An estimated 218 million people around the world have been barred from entering the U.S., and 109 travelers who were in transit when President Trump signed the order were turned away from the border. In Atlanta, 11 people were detained on Jan. 28 but were later cleared and released. Comprehensive data on how many are currently being detained nationwide remains unavailable.
Given the abrupt nature of the executive order’s passage and the lack of preparation time allotted to the organizations in charge of customs, border control and airport security, said personnel on the ground were left to improvise as word came through. The full text of the order was not released until later in the day on Jan. 28, leading to inconsistent interim enforcement between airports. Those currently being detained could, hypothetically, be held indefinitely until the new procedural normal is established.
Experts are currently debating the constitutionality of the ban. The Trump Administration has asserted that a 1952 law permitting the president to bar any class of alien he deems detrimental to the interests of the United States; that law, called the Immigration and Nationality Act or the McCaren-Walter Act, was altered 13 years later to clarify that no person could be denied an immigrant visa due to their race, sex, nationality, or place of birth or residence — notably, creed or religion is not on that list. By the logic that an immigrant cannot be issued a visa if they cannot enter the United States, such a law applies to both the entrance and visa-issuing processes. However, those visiting the United States for temporary work, study or tourism do not have similar protections built into existing law, and so any striking of the executive order which affects those parties would have to be solely on the basis of the Constitution.
On Jan. 30, Acting Attorney General Sally Yates went against Donald Trump in a move not unprecedented for an attorney general. She informed the justice department to not uphold the executive order in court, saying that she was “unconvinced” of the order’s legality. Some, including Jack Goldsmith, a Harvard Law School Professor, are not swayed by the reasoning that Yates gave to not stand by the order in court, yet are not in full agreement with which the hastiness of the order was brought about by the Trump Administration. Four hours after the Attorney General made this announcement, the White House sent a written letter to her office, informing her that she was fired. In a statement, the White House said “[Yates] has betrayed the Justice Department.” That betrayal is unclear from a purely legal standpoint. It is the duty of an attorney general to uphold the law, regardless of what orders come down the pipe from the President.
This last occurred in 1973 when President Nixon ordered that special prosecutor Archibald Cox be fired for investigating the Watergate Scandal, and instead of carrying out the order, the attorney general Elliot L. Richardson and deputy attorney general William D. Ruckelshaus resigned. Many questioned Yates’ motives, especially since Senator Jeff Sessions’ vote was due for Jan. 30, but the senate democrats have stalled his vote, saying he is “too close to Mr. Trump.”