Trump’s Travel Ban Shouldn’t Be Controversial

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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There should be nothing controversial about the purpose of President Donald Trump’s executive order relating to travel to the United States, at least as reflected in the order’s title:  “Protecting the Nation from Foreign Terrorist Entry into the United States.”  Who would disagree that it is a core function of the United States government to protect us from foreign terrorism?

Contrary to what one would conclude from the ongoing protests, most of the substantive provisions of the order should be uncontroversial as well.  The order calls for review of our immigration and border controls with an eye to assuring that we are getting the right information, institution of a uniform screening process (without regard to travelers’ nationalities), completion of a biometric entry-exit tracking system, suspension of the visa interview waiver program (again without regard to travelers’ nationalities), review of visa reciprocity agreements with other countries and public transparency of immigration data.

But it would be silly to think that even a few of the tens of thousands of protestors have actually read the executive order.  They are part of the resistance that objects to every Trump nominee and every other executive order the president has issued, not to mention his orange hair.

Actually there are things in the order that warrant objection.  For starters it is poorly drafted – it might get a C- in a law school legal writing class.  It makes the bizarre assertion that the United States “should not admit those who do not support the Constitution.”  Since when must citizens of other countries declare allegiance to the U.S. Constitution if they want to pay us a visit?  The order failed to address the obvious question of its application to people already in transit – those inevitably caught by surprise upon arriving at U.S. airports.  The order also failed to address the status of legal residents holding green cards.  Some have suggested that this was a conscious decision to test the willingness of immigration bureaucrats to follow their leader, but it is so obviously contrary to the rights of green card holders that any competent lawyer would have insisted on a clearly stated exception.

Provisions that have drawn protestors’ ire are the 90 day ban on entries from certain countries (designated in earlier legislation signed by President Obama), the 50,000 cap on refugees allowed entry in 2017, the 120 day suspension of the U.S. refugee program and the indefinite exclusion of Syrian refugees.  There is nothing unusual about suspending a program while it is under review, particularly if the review is motivated by a belief that the program may have flaws. The 50,000 cap on refugees is not as high as it was under Obama but is higher than it has been in the past.  More troubling is the indefinite suspension of a refugee program that can sometimes spell the difference between life and death.

From the perspective of many protestors, the executive order is the work of anti-Muslim bigots.  A more generous interpretation is that it is the work of amateurs.  Either way at least five federal courts have intervened on grounds of unconstitutional discrimination, denial of due process or lack of executive authority.  Had the administration bothered to consult with departments responsible for implementing the order, many of these problems probably would have been avoided.

There is no denying that President Trump is doing here and on other issues exactly what candidate Trump promised to do.  But in a rush to fulfill campaign promises Trump is putting his long-term success at risk.  His base will continue to support him, but the millions who voted for him as the lesser of evils will come to believe that they chose the wrong evil. And once all the executive orders are issued the President will discover that he needs a lot of help from Congress to deliver on most of his campaign promises.  Republican members of Congress may have fallen in line after Trump’s election, but poorly conceived actions like the executive order on travel to the U.S. will test their loyalty.  A few have already parted company with the Trump approach.

Even more republicans will join the opposition to a president whose executive actions seem to lack any regard for America’s history as a land of immigrants and refugees.  Of course we should extremely vet refugees to assure that terrorists are not among them.  But an indefinite suspension on refugees from Syria where good people face immediate threats to life and limb is simply not the American way.  Surely our government can improve its terrorist filters without indefinitely closing our doors to people suffering at the hands of a tyrant.

There is much in the president’s executive order on travel to the United States that makes sense and will advance the purpose of reducing the risks of foreign terrorists on American soil.  But there is just enough incompetence and heartlessness to assure that our divided politics will undermine the effort.  Putting America first should always mean putting American values first.