Attorney General Ferguson noted in his press initial conference that about 500,000 Green Card holders from the original 7 countries have been deleted in the new order, the ban of persons with dual citizenship which including one of the 7 countries was deleted, tens of thousands of valid visa holders have been deleted from the order — while those who had their visas cancelled are apparently required to re-apply for them — the rejection of Syrian refugees is no longer indefinite, and is limited to 120 days as the other 5 nations, the rejection of Iraqi refugees has been deleted from the order, and the prioritization of religious minorities — non-muslims — has been deleted, Rather than going into effect immediately and creating tons of chaos as did the previous order, the new order goes into effect on March 16th, 10 days after being issued.
The administration seems to believe that these changes will resolve the legal issues that were brought by the Ferguson’s suit. But the Administration fails on a very basic point, and that is the issue of fairness as well as justice. Their claims that this list of countries is based on previous legislation and decisions by the Obama administration is belied by the fact that they never made the decision to ban any refugees and in fact what they did was improve the vetting process. Which is exactly Trump what claims he can’t do for some reason, without first banning someone.
That’s in addition to the fact that when Trump requested supporting documentation for their ban from Homeland Security they rejected the premise.
Compiled by the Department of Homeland Security, the report said that banning all citizens of seven predominantly Muslim countries was an ineffective way of stopping terrorists coming to the US because “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”
But rather than listening to this advise, the Trump administration reissued a new version of their previous illegal, unconstitutional and wrong-headed ban.
There are still numerous problems with the new ban. Think progress goes over some of them.
The First Amendment prohibits the government actions “respecting an establishment of religion, or prohibiting the free exercise thereof.” The federal Religious Freedom Restoration Act provides additional protections against religious discrimination in excess of the Constitution’s guarantees. It provides that “government shall not substantially burden a person’s exercise of religion” except in limited circumstances.
Trump’s braggadocious promise to implement a “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on” is powerful evidence that the purpose of his travel ban is to burden Muslims’ exercise of their faith. So is an interview that Trump confidante Rudy Giuliani gave to Fox News in which he describes the real purpose of the original ban:
OK. I’ll tell you the whole history of it. So when [Trump] first announced it he said, “Muslim ban.” He called me up and said, “Put a commission together, show me the right way to do it legally.” . . . And what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on.
The White House’s efforts to make the original order seem legal, in other words, were merely a pretext for implementing a Muslim ban — not a serious effort to shy away from religious bigotry.
The circumstances surrounding the release of the new ban also suggest that the White House’s supposed justifications for the new order are a pretext.
Trump’s entire reason for doing this has already been revealed, he wanted a “Muslim Ban” the fact that he’s only banning “some” Muslims does not change the fact that Muslims are the targets not terrorists.
There have been no terrorist attacks inside the U.S. by anyone from these six countries.
Now that Iraq has removed from the list even the so-called “Bowling Green Massacre” doesn’t apply since that issue related to two Iraqi refugees who had tried to send weapons back to support the insurgency in their country. In fact, the only foreign refugees to successfully implement a deadly terrorist attack were the Tsarnaev brothers who were from Kyrgyzstan and Russia, two countries who are certainly not included in this refugee ban.
Under the Immigration and Naturalization Act of 1965 discrimination in immigration is prohibited not just based on gender and race, but also national origin.
Mr. Trump appears to want to reinstate a new type of Asiatic Barred Zone by executive order, but there is just one problem: The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin, replacing the old prejudicial system and giving each country an equal shot at the quotas. In signing the new law, President Lyndon B. Johnson said that “the harsh injustice” of the national-origins quota system had been “abolished.”
Singling out six nations, with no legitimate or factual basis to suspect they are more likely to produce terrorists, is the very definition of discrimination and would violate not just the 1st Amendment Establishment clause, but also the 14th Amendment equal protection clause.
By eliminating those with Visas or Green Card much of the standing claim made by Washington State in their original suit has been eliminated, but that ignores some key issues about refugees. First of all they don’t decide which country they will be relocated to, that is decided by the UNHCR which does 18-24 months of vetting before that decision is made, and when they do make the decision the priority is to reunite these refugees with their own family who may be overseas.
Just as Washington had made their previous standing claim based on relatives, employees and co-workers with visas or green cards who were being blocked from being reunited with those kept out of the country due to the ban, so too is this true for refugees.
That’s in addition to the fact that the U.S. is a signatory to the 1967 UN Protocol on Refugees which made the ability to apply for refugee status universal.
Grounded in Article 14 of the Universal Declaration of human rights1948, which recognizes the right of persons to seek asylum from persecutionin other countries, the United Nations Convention relating to the Status ofRefugees, adopted in 1951, is the centrepiece of international refugee protec-tion today.(1) The Convention entered into force on 22 April 1954, and it hasbeen subject to only one amendment in the form of a 1967 Protocol, which removed the geographic and temporal limits of the 1951 Convention.(2) The1951 Convention, as a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1 January 1951 and within Europe. The 1967 Protocol removed these limitations and thus gave the Convention universal coverage. It has since been supplemented by refu-gee and subsidiary protection regimes in several regions,(3) as well as via the progressive development of international human rights law.
Deviating from the universal element of the protocol, is a violation of this treaty which has been ratified for 50 years. Treaties entered by the United States are effectively amendments to our Constitution under the Supremacy clause.
A treaty is “primarily a compact between independent nations.” Article II, Section 2 of the Constitution gives the President the power “to make Treaties, provided two thirds of the Senators present concur.” And the Supremacy Clause provides that “treaties,” like statutes, count as “the supreme law of the land.”
That means that it could be largely argued that violating the universal provision of the refugee protocol, is directly unconstitutional under the Supremacy clause.
Whether it’s on grounds of the First Amendment, Fourteenth Amendment, Immigration Act or UN protocols under the Supremacy clause — this Muslim travel ban is facing a fairly large legal battle.
On top of all that there is the moral issue that this could very likely backfire because this reenforces the narrative that America is Anti-Muslim. A point that was also made by the Homeland Security Report.
In fact, the report actually suggests that government activity that might be perceived as Islamophobic actually fuels radicalization in both native-born and foreign-born violent extremists. The perception that the U.S. treats Muslims unjustly, combined with feelings of anger and isolation and having witnessed violence as a child, is more likely to contribute to radicalization. In other words, actions like an arbitrary ban on immigration from various Muslim countries might do more to increase domestic terror activities than they do to prevent such violence.
So not only would that make no substantive improvements in making America safer, it could demonstrably make us less safe.
Thanks Drumpf.