Travel ban, Temporary ban on immigration from 7 countries, which ever way you'd like to phrase it, one thing’s for sure – it isn’t a "Muslim" ban. This is the contentious issue because the constitutionality of Trump's Executive Order hinges upon this very argument. If Trump’s travel ban policy is indeed a Muslim ban, then the Executive Order in question should & ought to be ruled unconstitutional. Edward Snowden cried out on Twitter that Trump’s executive order is unconstitutional. Sally Yates, former acting Attorney General refused to enforce the order by telling the Justice Department not to defend Trump’s immigration policy, and was sacked as a result. She stood by her claim that as Attorney General (acting or otherwise), she is obliged only to obey the Constitution and lawful orders. These sentiments are echoing and reverberating throughout the internet right now. However, it is important to look past the noise and fully examine whether Trump's actions over the past week are really unlawful and/or unconstitutional, which I will now attempt to do.
Some may question why the following needs to be said - but the purpose of this is to establish that I want to carefully and fairly examine the laws and facts in question and not partake in any form of emotional outburst. I’m not a Trump apologist, but what I abhor is a whole lot of reacting without thinking, and that’s exactly what’s taking place across the internet right now. There are things I disagree with Trump on about, for instance - his wall idea. I personally think Ron Paul’s solution is far better. I also think Trump’s administration screwed up on the Green card matter – but as far as I am aware, it has been or is being resolved.
Let’s first discuss the constitutional implications of Trump’s EO by examining the First Amendment of the United States Bill of Rights. This is the amendment that liberals are waving about right now; arguing that it has been violated.
THE FIRST AMENDMENT OF THE BILL OF RIGHTS
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”
The First Amendment explicitly prohibits any law that hinders the free exercise of religion. Therefore, if Trump had singled out Muslims in his ban, this would have been a blatant violation of the First Amendment. However, the fact is that this Executive Order does not amount to a religious ban in any way for two simple reasons:
Firstly:
If this is indeed a "Muslim ban", why aren’t other Muslim-Majority countries included in the list? Where is Saudi Arabia, Pakistan, Malaysia, Nigeria, Egypt, Bangladesh, Turkey, Indonesia, just to name a few? The most common rebuttal I’ve come across is that Trump has business interests in the countries that have been excluded from the list. This argument is incredibly weak in substance. What kind of business interest does Trump have in Nigeria - a nation under siege by Boko Haram, a Radical Islamic organization? Let us not forget that North Korea is also on the list. Last I checked, the only religion acceptable in North Korea is Kim Sung-Il'ism.
Secondly – The countries on the list were not even selected by Trump in the first place. They were selected by the Obama administration. Therefore Trump couldn't have possibly instigated a Muslim Ban on his own accord since the list of countries wasn't even his idea to begin with.
To conclude, the idea that Trump singled out Muslims in his EO to ban them is obviously and factually inaccurate.
With The Constitution out of the way, let’s look next at Statutory Law, and examine whether there are any Statutes passed by Congress that authorizes Trump to carry out his EO.
STATUTORY LAW
Section 1182(f) of the Immigration and Nationality Act 1952 states:
“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”
This is indeed a Federal Law that has not been repealed and which clearly authorizes Trump to enforce such a ban. Note that the First Amendment isn’t affected by this because this provision in no way discriminates against an Alien due to his religion. There have been some arguments, however, that this statute has been repealed, albeit impliedly.
This is because a later Statute, the Immigration and Nationality Act of 1965 provides that:
“no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”
I concede that is a far stronger argument than the one based on infringing upon the Constitution since this statute now covers discrimination against one based on nationality and place of residence. In a nutshell - the doctrine of implied repeal provides that where an an Act of Congress conflicts with an earlier Act, the later Act takes precedence and the earlier Act or parts of it are repealed impliedly. So by virtue of this doctrine, the earlier Act (the Immigration and Nationality Act 1952) should no longer apply.
However, there are a couple of problems with this.
The first problem is that the doctrine of implied repeal is a disfavoured doctrine in the United States (unlike the United Kingdom). In the Columbia Law Review Vol. 55, No. 7 (Nov., 1955), pp. 1039-1053, it is stated that “repeals by implication are not favoured” and “that there is a presumption against repeals by implication”. This is also reflected in the case of DuBois v Gibbons where the Illinois Legislature had passed 2 Bills with the same section number by mistake. However, it was held that the earlier statute was not repealed and therefore not subsumed by the later statute. Moreover, in ‘Principle Of Statutory Interpretation by J. G.P.Singh (eighth edition) p.522’, it is contended that the reason why a presumption against a repeal by implication exists is because “the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide repealing provision, it gives out an intention not to repeal the existing legislation.”
By virtue of this, the Immigration and Nationality Act 1965 cannot then be said to have repealed the conflicting provisions in the Immigration and Nationality Act 1952.
Let us, however, for the sake of argument, concede that the doctrine of implied repeal does apply here. After all, and to be fair, the doctrine of implied repeal does apply in certain circumstances, albeit sparingly, particularly in cases where a later statute and earlier statute are completely incapable of being reconciled. This is indeed the case here since the Immigration and Nationality Act of 1965 and 1952 are polar opposites with regards to the particular provision in question.
In such a case, the doctrine of implied repeal ought to be applied again to discredit the 1965 Act, this time by a later Law overseen by none other than Obama. As Andrew C. McCarthy points out in his article, the Department of Homeland Security under the Obama Administration implemented the Visa Waiver Program Improvement and Terrorist Travel Protection Act of 2015. The text enshrined in the Visa Waiver Program under Section 1187(a)(12) provides that:
“an alien is eligible for the waiver only if he or she has not been present (a) in Iraq or Syria any time after March 1, 2011; (b) in any country whose government is designated by the State Department as “repeatedly provid[ing] support for acts of international terrorism”; or (c) in any country that has been designated by the Department of Homeland Security as a country “of concern.”
Note too, that the 7 countries the ban applies to fall under this Act.
Therefore, if one were to apply the doctrine of implied repeal, one must apply it consistently, and this Visa Waiver Program clearly takes precedence over the 1965 Act.
The moral implications of Trump’s EO fall into a different ballpark, but even there is a defensible argument for that. The legality of Trump’s EO, on the other hand, is plain & clear as day. I conclude, based on my findings and research above, that Trump did not violate the Constitution in any way, nor did he act unlawfully.
N.B.: I got some of my information from the following links:
1. ‘Most claims about Trump’s visa Executive Order are false or misleading’ by William A. Jacobson for Legal Insurrection
2. ‘Trump’s Exclusion of Aliens from Specific Countries Is Legal’ by Andrew C. McCarthy for National Review
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