Trump’s Immigration Executive Orders and the Constitution
February 20, 2017 Michael Cutler
President Trump has stated that he plans to modify and re-issue his executive order concerning his executive order to suspend the entry of aliens into the United States who are citizens of countries that have a nexus to terrorism and where the citizens of those countries cannot be properly vetted to prevent terrorists from entering the United States.
It will be interesting to see what the new executive order will contain. I am certain that Attorney General Jeff Sessions will be able to devise a “new and improved” executive order. However, I am still struggling to understand how the first order ran into any problems.
Those opposed to President Trump’s executive orders on immigration have freely and frequently invoked the claim that those executive orders are “unconstitutional.”
Although many politicians, pundits and journalists have made that claim on a string of news programs on the major networks, they have rarely, if ever, been challenged to explain how the President’s executive orders violate the Constitution.
Usually when making their fatuous claims about the “unconstitutionality” of the immigration executive orders, they cite the First Amendment of the Constitution and the issue of religious freedom.
What has been generally glossed over was the fact that the executive order did not mention any religion, let alone Islam. However, inasmuch the seven countries identified in the executive order as being “Muslim majority countries” the illusion was created that President Trump was attempting to bar the entry of Muslims into the United States.
What was also ignored by the media is that the list had been compiled by the Obama administration.
What has additionally been ignored is that in 1980 President Carter suspended the entry of citizens of Iran into the United States when our embassy at Tehran was seized.
If Trump’s goal was to bar the entry of Muslims into the United States he was incredibly inept. In fact, if that was his goal, he should have added the world’s most populist Muslim majority nation, Indonesia, to that list of countries inasmuch as its population is nearly as great as the combined population of all of the seven countries on that list.
The seven countries are countries that have a nexus to international terrorism. As was the case in 1980, the entry of citizens of Iran into the United States was to be suspended.
Yet these issues are seldom noted in the mainstream media.
In this era of “Asymmetrical Warfare” the Commander-In-Chief must not only protect America and Americans from foreign governments and their military but from international terrorist organizations.
Consider that on September 11, 2001 nineteen terrorists, barely out of their teens inflicted more casualties on the United States than did the entire Japanese fleet at Pearl Harbor on December 7, 1941.
Now let’s consider that Article IV, Section 4 of the U.S. Constitution states:
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
Invasion has been defined as:
an instance of invading a country or region with an armed force: the Allied invasion of Normandy | in 1546 England had to be defended from invasion.
an incursion by a large number of people or things into a place or sphere of activity: stadium guards are preparing for another invasion of fans.
an unwelcome intrusion into another’s domain
As for the expression, “domestic violence,” deadly terror attacks certainly inflict devastating domestic violence.
I would suggest that a failure of the President of the United States to act to prevent the entry and embedding of foreign terrorists into the United States would constitute nonfeasance, misfeasance and malfeasance. Indeed, I would argue it would constitute gross negligence of duty.
Furthermore the Immigration and Nationality Act (INA) includes this statute: 8 U.S. Code § 1182 – Inadmissible aliens which includes section (f) Suspension of entry or imposition of restrictions by President. That section includes the following paragraph:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
It is clear that the President of the United States may act unilaterally if he finds that the entry of any alien or class of aliens would be detrimental to the interests of the United States. The phrase “detrimental to the interests of the United States” creates an extremely low bar. Threats to national security certainly exceed the minimal standard of being “detrimental to the interests of the United States.” Time and again innocent people in the United States have been killed and grievously injured by foreign terrorists who managed to game the visa process and the process by which aliens are granted various immigration benefits including being granted political asylum, lawful immigrant status and even, in a few instances, United States citizenship.