The Legality of Discrimination

On January 27th, of 2017, President Donald Trump fulfilled one of his campaign promises by enacting an executive order, with the sole purpose of restricting travel and immigration from countries that have been declared terrorist “hotbeds”. In the text, President Trump states, “In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.” (Trump “Full Executive Order Text). What is most interesting about this statement is that its purpose violates those very words. This executive order IS an act of bigotry against Muslims.

It should be made clear that nothing in this text directly mentions religion or Muslims specifically, it is in Trumps statements post-Order that has the biggest cause of concern. In an interview with the Brody File, Trump mentions the fact that his administration will prioritize Christian refugees stating, “… if you were a Christian in Syria it was impossible, at least very tough to get into the United States?” (Brody. “Brody File Exclusive”). This comes in the face of evidence that an equal number of Christians and Muslim refugees were let into the United States last year (Connor, Pew Research Center), despite the fact that they were all coming from a region of the world that was predominantly Muslim.

So what happens now? Well as of the signing of the act, the effects of the immigration ban were instantaneous. People coming from the banned countries are being denied entry, protests have erupted at airports around the country, and immigration lawyers are working tirelessly around the clock to ensure the safe travels and passage of their clients to the United States. Soon after the signing of the executive order, the American Civil Liberties Union (ACLU) filed lawsuits on behalf of two men whom the ban effected. As it appears the immigration ban will now be challenged in the court system we need to ask ourselves the all important question, how legal is this executive order? Well according to some people yes it is, although I would say they offer more (biased) opinion then they do substantive fact. However, an article from the New York Times mentions that there are actually laws in place since the 1960’s to prevent discrimination against immigrants from a specific nationality and although I won’t get into the specificity of it, it can all be read here.

So let’s say that the New York Times is accurate and the executive order has overstepped the Presidents legal authority, can’t congress just pass a law does the same thing. Well many (including myself) would argue no, its unconstitutional. Ultimately, in future actions taken by the legal system and any possible Supreme Court cases, I believe that the argument will be centered around the first amendment and its interpretation (or lack thereof). As it reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” (US Const. amend I). While nothing in the text of the executive order (or the hypothetical congressional law) mentions religion specifically, in practice the prioritizing of Christian refugees can and should be seen as a violation of the establishment of religion, and I would presume that any legal case would start there. Opponents might argue that because Christians face an inordinate amount of danger, they are being favored due to security reasons rather than religious ones and while on a country by country basis this may be justifiable, I don’t believe that the law can just make that blatant statement about the middle east region specifically, and I would hope that the courts would agree. However, it wouldn’t be the first time that the courts were on the wrong side of discrimination.

Works Cited

Brody, David. “Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees.” (beta). N.p., 27 Jan. 2017. Web. 30 Jan. 2017.

Connor, Phillip. “U.S. Admits Record Number of Muslim Refugees in 2016.” Pew Research Center. N.p., 05 Oct. 2016. Web. 30 Jan. 2017.

Trump, Donald J. “Full Executive Order Text: Trump’s Action Limiting Refugees Into the U.S.” New York Times. N.p., 27 Jan. 2017. Web. 29 Jan. 2017.

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2 Responses to The Legality of Discrimination

  1. thomasmatiski says:

    This debacle calls to mind several issues that directly stem from the implicit powers that the President is granted due to tradition and necessity, though not specifically enumerated in the Constitution as it were. This of course, as mentioned, is the concept of executive orders. Executive orders have seen fundamental changes over time, especially starting from the Emancipation Proclamation as given by Abraham Lincoln. First, to define an executive order: they “…are simply presidential directives issued to agents of the executive department by its boss.” However, it is clear that there is no textual evidence for or against executive orders, and as such it is only an assumed power of the Presidency, mostly with intentions of Typical executive orders were seen as things like calling for half-staff flag lowerings, or official mournings of Presidential deaths. The first major divergence was as mentioned above, started with Franklin D. Roosevelt in creating policy, by declaring a bank holiday (Executive Order 6102). Now the key issue at stake with these executive orders is the fact that since there is no legal basis supporting their order, they must find a statute or right in the existing legislation of the U.S. Code and Constitution to support their executive order, lest their order be deemed unconstitutional in the court systems. To this effect, President Trump used the claim: “By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows…” What is clear is that President Trump believes that under the power of the delegation as granted by section 301 of title 3, he has the power in his executive order to delegate the authority to detain or block entry to the U.S., specifically from the countries mentioned. He believes under the standing provision of the INA he has the authority to protect the U.S. from terrorism. The major arguments, and reason, that there have been temporary injunctions against its enforcement, are that it violates the due process clause of the 5th amendment as well as the Establishment clause of the First Amendment by preferring one religion over another. Pending judicial review, this executive order will be upheld or struck down.

    What this situation really highlights is the lack of legislation defining the boundaries of actions that a President can take under the phrase “…authority vested in me as President by the Constitution and laws of the United States of America…” Perhaps it is time to question the fundamental reasons behind allowing executive orders that do not clearly just relate to foreign affairs, as this unilateral power can be construed as too easily abused to the detriment of the country.

  2. brontesaurus says:

    I really like how in-depth your discussion of this order is. I think it’s important that you discussed all sides of the issue and I feel like your predictions about how courts will interpret this are fairly accurate, and I’m interested to see how this plays out in the coming weeks.

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