I don't doubt that Andrew C. McCarthy is right when he says that Trump's exclusion order for terror-involved countries is legal. There is plenty of precedent, even among liberal icons like Obama (who closed the Iraqi refugee program for six months in 2011), Carter (who barred Iranians during the hostage crisis), and FDR (who used an EO to bar Japanese and German immigration to the United States). Trump is clearly within well-established Constitutional norms even for modern Democratic presidents.
On the other hand, it's striking to me that the order permits Saudis but not Lebanese. Yes, Hezbollah is from Lebanon, but al Qaeda is from Saudi Arabia if it's from anywhere. I have read that the list of countries was put together by the Obama administration, but clearly the two biggest sources of terror -- if we're honest -- are Iran and Saudi Arabia, with radicals in Iraq and Syria being largely proxies of these actors.
The opposite side of the order is that it bars people from certain countries even if they are green card holders, Kurds who have been fighting ISIS, people who have demonstrated a commitment to the United States by working with us as interpreters, and so forth.
I get that the order is quite temporary, pending better vetting methods for the most part. It's also much less radical than its opponents are suggesting. It certainly isn't a "Muslim ban," and indeed doesn't even target a number of Islamic countries with large Islamist terrorism problems (e.g., Pakistan and Turkey). Countries like Egypt and Indonesia, which have large Muslim populations and terrorist groups but also governments that are pretty committed to managing them, are also untouched.
Some of the criticism is therefore unwarranted. Still, the order is both too wide and too narrow in different respects. What is the right course of action for us as citizens at this juncture? Should we urge our representatives and Senators to push for an alteration in the policy?
UPDATE: Here is the full text of the order, for the lawyers among us.
UPDATE: Priebus walked back the green card ban today, which is the most obviously wrong part of the ban.
9 comments:
RedState links to an essay from Patterico which purports to demonstrate that McCarthy is wrong on the law.
Patterico did not remind us of the quote that 'the law is an ass.'
That piece you cite -- which is here, if anyone else wants to look at it -- is just wrong. The author admits he is not a lawyer or an expert, but is convinced that Congress and not the President has authority here. In addition to the fact that FDR's EO shows that courts have accepted Presidential authority in the past, though, the fact is that it isn't especially plausible to think that Congress should initiate major foreign policy decisions relating to whole countries. The President alone can recognize a foreign government as legitimate or not (Truman and Israel, for example). The President enters into treaties with the 'advice and consent' of the Senate, but it's an Article II power, not an Article I power.
So I don't buy the refutation.
Patterico is Patrick Frey, Deputy District Attorney in the Los Angeles County District Attorney's Office.
http://members.calbar.ca.gov/fal/Member/Detail/169227
I think his line "I am not an immigration lawyer and do not claim any expertise in this area, but I’m capable of reading a statute and a legal argument" is better read as "I am a lawyer but immigration law is not my specialty".
There never was a green card ban. That's just another of the NLMSM's distortions. Kelly's phrasing was necessary only because it'll be hard to distort that.
Eric Hines
OK, he's a lawyer if not an immigration lawyer, and I am no lawyer of any kind. However, he's still wrong on the merits of the question. One needs to be a lawyer less than a student of history to see why.
The take I read on the green-card issue this morning was that holders of green cards are subject to the ban, but in reviewing exceptions to the ban, green-card status will be dispositive in the absence of compelling evidence of dangerous associations or activities. I can personally live with a blanket green-card exception, but I can also live with a green-card ban coupled with a nearly blanket green-card exception, as long as it's implemented quickly and fairly transparently. The idea that the U.S. doesn't have the right to do these things strikes me as lunacy. The only controversy should be over whether an approach has adequate public support and is workable enough not to stink of banana-republic paralysis and corruption.
The 'adequate public support' thing may be a stumbling block, given the massive protests nationwide against it. But of course, there's just as big a faction aligned in favor of this policy as against it -- Trump ran on it openly, and won (if barely, and only in the Electoral College).
My guess is that the supporting faction hated the Obama 'Refugees Welcome!' policy exactly as much as the opposing faction hates Trump's new policy. They're just not as inclined to staging protests.
The 'adequate public support' thing may be a stumbling block, given the massive protests nationwide against it.
The "massive protests nationwide" may be a media fabrication in light of this Quinnipiac poll.
Eric
Actually, that figure is right where you'd expect it to be given the election results. Nearly half supporting it means that nearly half oppose it: 48/42, right at the limits of their 3.3% margin of error.
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