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The Real Problem with Trump’s Executive Order

eye on the news

The Real Problem with Trump’s Executive Order

The policy is eminently defensible, but the administration needed to explain it to the public. February 1, 2017
Politics and law

Cultivating opposition and confusion is not a political end in itself. Yet the sudden, unexplained rollout of President Trump’s executive order on immigration from terror-spawning countries last Friday suggests that the Trump White House is actually seeking to provoke hysteria on the part of its enemies—or else is dangerously short on public relations and administrative skills. The Trump team needs to up its game quickly if it is going to fulfill the president’s mandate.

Trump’s order is legal and defensible. For 90 days, citizens of seven countries with particularly virulent terrorist networks will be denied entry to the U.S., while the administration investigates how better to research a visa applicant’s possible terror connections. It was President Barack Obama who designated the seven covered countries—Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen—as so dangerous that if a European citizen or anyone else eligible to enter the U.S. without a visa merely visited them, that citizen would lose his right to visa-less entry to the U.S. Individual exceptions to Trump’s entry pause may be made on a case-by-case basis.

The order also suspends most refugee resettlement for 120 days and suspends the resettlement of Syrian refugees until further notice. The secretary of the Department of Homeland Security shall report to the president on deficiencies in visa and refugee screening within 30 days of the order and recommend how to improve the screening: what sort of identity documentation should be required, for example, how to better detect fraud, how to determine an intending immigrant’s likelihood of becoming a productive member of society. The executive action calls for regular disclosure of terrorist charges brought against foreign nationals, the extent of radicalization among foreign nationals, and the gender-based violence against women committed by foreign nationals.

All these provisions pass statutory and constitutional muster. The president has the authority to “suspend the entry of all aliens or any class of aliens” if he determines that their entry “would be detrimental to the interests of the United States,” in the words of a 1952 federal statute. Opponents of Trump’s order claim that it violates the 1965 Immigration and Nationalization Act, which declares that no visa applicant shall be “discriminated against” because of “nationality” or “place of residence.” But the president’s constitutional power over national security matters takes precedence over a congressional anti-discrimination clause, as Andrew McCarthy has argued. Trump is acting here pursuant to his constitutional authority to protect the country from external threats. The 1965 law was aimed at previous immigration quotas designed to preserve the country’s ethnic balance; it was not a security measure. And previous administrations have agreed with the Trump reading. President Jimmy Carter banned “all visas issued to Iranian citizens” after his Justice Department concluded that national origin exclusions were legal, notwithstanding the 1965 law.

This executive order is far from a “Muslim ban,” pace the press. Millions of Muslims remain as eligible for entry after the executive order as they were before it. The order singles out entries from seven countries based on evidence of the heightened Islamic terror threat there. If doing so is impermissible because those seven countries have Muslim-majority populations, then national security has been completely sublimated to political correctness. It is not the U.S.’s fault that the individuals creating the most worldwide havoc with bombings and beheadings of civilians are Muslims motivated by radical Islamic ideology. The U.S. is forced to take its enemies as and where it finds them.

 Have Islamic terrorists come from other countries? Yes, but the seven countries selected by the decree are now the site of the most contagious terrorist ideology and chaos, according to the Obama administration and now the Trump administration as well. The critics cannot simultaneously argue that the pause is too sweeping—taking in a handful of Muslim-majority countries—and that it is not sweeping enough—not taking in more Muslim-majority countries.

Has Islamic terrorism been committed by second-generation immigrants? Yes, making it all the more critical to worry about the assimilation capacity of first-generation immigrants.

Contrary to the constant media refrain over the last six days, refugee screening is anything but watertight. The idea that the governments of civil-war-torn countries are able to provide credible identity documentation is ludicrous. A review of how to strengthen refugee screening is long overdue.

The Trump administration is trying to forestall the routine Islamic terror attacks that now afflict Europe, thanks to the inadequate vetting of immigrants and refugees and their sheer numbers. The fact that we have not had the number of attacks that Europe has had is no reason not to take preventive action now before it is too late.

Department of Homeland Security secretary John Kelly gave a news conference on Tuesday in which he calmly and persuasively made the case for the order and rebutted the misinformation about it spread by the media. It was not the case that Kelly and Pentagon chief James Mattis were kept out of the loop, Kelly said; Kelly had seen several early drafts of the order.

The question is: Why did it take so long for such a presentation to occur? The order was implemented first and then explained piecemeal later. By then, the narrative that it was racist, un-American, and a threat to world peace was dominating the airwaves. While activists and Democratic politicians would have designated the order a “Muslim ban” even had a full explanation been offered initially, at least that explanation would have been on the record and available for citizens to evaluate for themselves. Perhaps the Trump inner circle thought that having the president himself explain the order would give it too much importance. If so, then the White House should have designated someone else with gravitas to do it.

The administration should have waited until the new attorney general was in place, made careful exceptions for visa-holders already in transit, and coordinated more rigorously with the implementing agencies. Acting Attorney General Sally Yates’s grandstanding refusal to defend the order because she was not convinced that it was lawful or “wise or just” violated the traditions of the Justice Department and rightly resulted in her dismissal. But the administration did not need another mediagenic drama playing out with the “Trump is a lawless bigot” storyline.

The initial confusion over the treatment of legal permanent residents (so-called green-card holders) was avoidable. So was the very real disruption to travelers. While the visa-entry pause is quite temporary, it was foreseeable that it would be spun as a cataclysmic betrayal of America’s very essence. It therefore required a public explanation. There was no need to rush the order through last Friday before the agencies were up to speed, unless the White House is pursuing a relentless shock-and-awe strategy that requires a strict timetable of near-daily attacks on the established order. Or perhaps the thought was to slip it in so that the ensuing ruckus would be eclipsed by the announcement of Trump’s Supreme Court nominee.

The new administration’s sense of urgency about delivering on the president’s campaign promises is admirable. But just because Trump said that he was going to do something during the election does not obviate the need to explain that action now. Trump will never convince the Left that he is not a fascist. But ordinary Americans in the middle of the ideological spectrum deserve a full airing of the reasons behind Trump’s executive actions. Trump advisor Steve Bannon’s contempt for the media and political establishment is well known. But that contempt should not spill over into a disregard for the persuasive and explanatory responsibilities of the presidency. Trump owes it to his supporters to create the rhetorical basis of governance.

Photo by Pool/Getty Images

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