By
David Bier – The New York Times, opinion
President
Trump signed an executive order on Friday that purports to bar for at least 90
days almost all permanent immigration from seven majority-Muslim countries,
including Syria and Iraq, and asserts the power to extend the ban indefinitely.
But
the order is illegal. More than 50 years ago, Congress outlawed such
discrimination against immigrants based on national origin.
That
decision came after a long and shameful history in this country of barring
immigrants based on where they came from. Starting in the late 19th century,
laws excluded all
Chinese, almost all
Japanese, then all
Asians in the so-called Asiatic Barred Zone. Finally, in 1924, Congress created a
comprehensive “national-origins system,” skewing immigration quotas to benefit
Western Europeans and to exclude most Eastern Europeans, almost all Asians, and
Africans.
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.”
Nonetheless,
Mr. Trump asserts that he still has the power to discriminate, pointing to a 1952 law that
allows the president the ability to “suspend the entry” of “any class of
aliens” that he finds are detrimental to the interest of the United States.
But
the president ignores the fact that Congress then restricted this power in
1965, stating plainly
that no person could 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.” The only exceptions are those provided for by Congress (such as the
preference for Cuban asylum seekers).
When
Congress passed the 1965 law, it wished to protect not just immigrants, but
also American citizens, who should have the right to sponsor their family members
or to marry a foreign-born spouse without being subject to pointless
discrimination.
Mr.
Trump may want to revive discrimination based on national origin by asserting a
distinction between “the issuance of a visa” and the “entry” of the immigrant. But
this is nonsense. Immigrants cannot
legally be issued a visa if they are barred from entry. Thus, all
orders under the 1952 law apply equally to entry and visa issuance, as his
executive order acknowledges.
Note
that the discrimination ban applies only to immigrants. Legally speaking,
immigrants are those who are given permanent United States residency. By
contrast, temporary visitors like guest workers, students and tourists, as well
as refugees, could still be barred. The 1965 law does not ban discrimination
based on religion — which was Mr.
Trump’s original proposal.
While
presidents have used their power dozens of times to keep out certain groups of
foreigners under the 1952 law, no president has ever barred an entire
nationality of immigrants without exception. In the most commonly cited case,
President Jimmy Carter barred certain
Iranians during the 1980 hostage crisis, but the targets were mainly
students, tourists and temporary visitors. Even then, the policy had many
humanitarian exceptions. Immigrants continued to be
admitted in 1980.
While
courts rarely interfere in immigration matters, they have affirmed the
discrimination ban. In the 1990s, for example, the government created a policy
that required Vietnamese who had fled to Hong Kong to return to Vietnam if they
wanted to apply for United States immigrant visas, while it allowed applicants
from other countries to apply for visas wherever they wanted. A federal appeals
court blocked the
policy.
The
government in that case did not even bother arguing that the 1952 law permitted
discrimination. The court rejected its defense that a “rational link” with a
temporary foreign policy measure could justify ignoring the law — an argument
the Trump administration is sure to make. The court wrote, “We cannot rewrite a
statutory provision which by its own terms provides no exceptions or
qualifications.”
To
resolve this case, Congress amended the law in 1996 to state that
“procedures” and “locations” for processing immigration applications cannot
count as discrimination. While there is plenty of room for executive mischief
there, the amendment made clear that Congress still wanted the discrimination
ban to hold some force. A blanket immigration prohibition on a
nationality by the president would still be illegal.
Even
if courts do find wiggle room here, discretion can be taken too far. If Mr.
Trump can legally ban an entire region of the world, he would render Congress’s
vision of unbiased legal immigration a dead letter. An appeals court stopped President
Barack Obama’s executive actions to spare millions of undocumented immigrants
from deportations for the similar reason that he was circumventing Congress. Some
discretion? Sure. Discretion to rewrite the law? Not in America’s
constitutional system.
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David
J. Bier is an immigration policy analyst at the Cato Institute’s Center for
Global Liberty and Prosperity.
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Photo:
Protesters near the White House on Wednesday. CreditAl Drago/The New York
Times
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