Print Friendly and PDF
only search openDemocracy.net

Trump’s immigration policy is certainly immoral, probably illegal

The benefits of the ban are nonexistent, but the economic, political, and humanitarian costs are very real. 

Protesters rally against President Donald Trump's refugee ban on Sunday, January 29, 2017 at Miami International Airport. Press Association/C.M. Guerrero/Miami Herald/TNS/ABACA. All rights reserved. Much of the United States and the rest of the world has reacted with shock and dismay at president Donald Trump’s recent travel ban – if not by the content of the executive order, which Trump had telegraphed during the campaign, then at least by the swiftness with which he put it in place, the uncertainty about how to comply with it, and the audacity of an executive-level directive that is so shamelessly xenophobic and anti-Islamic.

The president’s executive order bars immigration from seven countries – Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia – for 90 days, suspends new refugee admissions for 120 days, and caps the total number of refugees allowed into the US this year at 50,000 – significantly lower than the 110,000 that the Obama administration had set as a goal for 2017. In response to the order, the Department of Homeland Security has detained people with valid visas at airports, in some cases sending them on return flights back to their home countries. After some confusion, the White House declared that green card holders would be allowed to enter the country, but that they would be considered on a “case-by-case basis” after passing a secondary screening.

Several challenges have been made in federal courts, and judges’ rulings have invariably qualified or suspended Trump’s order: blocking deportations, ordering that detained immigrants be allowed to consult with lawyers, or demanding the immediate release of valid visa-holders from federal detention. Acting US Attorney General Sally Yates ordered the Justice Department not to defend the executive order in court, claiming that it is inconsistent with the Department’s “solemn obligation to always seek justice and stand for what is right,” and that it may be illegal. Trump subsequently fired her.

US immigration policy has always served the country’s national, economic and political interests. Some of its first immigration laws sought to exclude people based solely on race or nationality. The Immigration Acts of 1917 and 1924, and the Quota Law of 1921 allotted specific numbers of immigrants based on country of origin, with the express purpose of prioritising those who would better assimilate into American culture. The Immigration and Nationality Act of 1965, however, eliminated national origin as a basis for admission to the US.

The president has broad power to regulate immigration. According to U.S. Code §1182, if the president deems that allowing immigrants or refugees into the country would be “detrimental to the interests of the United States,” he can, without consent of Congress, “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.” The restrictions on refugees, then, are probably legal. Barring immigration from seven specific countries, however, is a point of contention. It seems to run afoul of the provision in the 1965 law that prohibits discrimination on the basis of national origin.

Trump cites 9/11 as an instance of the failure of US immigration policy, yet none of the nineteen hijackers came from the countries subject to the freeze.

The president’s stated reason for the travel ban is to protect the country from terrorist threats, but his reasoning is flawed in several different ways. First, it is based on incorrect assumptions – what the Trump administration would probably call “alternative facts.” The terrorist threat posed by legal (and indeed illegal) immigrants and refugees is minimal, nearly nonexistent. Alex Nowrasteh, an immigration expert at the Cato Institute, found that immigrants from the seven countries listed have killed zero people in terrorist attacks in the US between 1975 and 2015. Trump cites 9/11 as an instance of the failure of US immigration policy, yet none of the nineteen hijackers came from the countries subject to the freeze (fifteen came from Saudi Arabia). White House press secretary Sean Spicer cited both the Boston Marathon bombing and the San Bernardino shooting in defending Trump’s executive order, yet, again, none of these attackers would have been affected by this ban.

In a recent interview, Sebastian Gorka, deputy assistant to the president, said, “This executive order is a moral question because it’s about protecting Americans.” Meanwhile, there were over 15,000 gun-related deaths in the US in 2016, and Trump has vowed to protect the people’s individual right to bear arms. The appeal to public safety is a smokescreen that distracts people from real security issues that he won’t confront in favour of imagined security issues that he will.

There were over 15,000 gun-related deaths in the US in 2016, and Trump has vowed to protect the people’s individual right to bear arms. 

Trump’s calculation of the consequences not only overestimates the harm he is avoiding, but also underestimates the harm that this will cause for Syrian refugees. A refugee is by definition a displaced person who cannot return home safely – a claim that is verified by US officials before the person is granted refugee status. By denying Syrian refugees entry into the United States, the president is either putting them back into the horrible conditions of refugee camps, counting on the already overburdened countries of Europe and the Middle East to handle even more refugees, or returning them to the ongoing humanitarian crisis in Syria. Trump is showing little consideration for non-Americans, who are in far more danger and experience violence all around them, when there is no evidence that immigrants or refugees are a threat to Americans. Therefore, the travel ban is a flawed consequentialist argument, in that it appeals to a risk to US citizens that doesn’t exist as a reason to subject non-US citizens to a very real risk elsewhere.

Ultimately, the travel ban could harm Americans and permanent residents as well. The executive order has caused political turmoil throughout the United States. The effects that the ban will have on green card holders who are trying to reenter the country is still unclear, and this uncertainty will have an economic impact in the short and long term, since many green card holders are sponsored by employers. CEOs of several major American companies have come out against the ban, claiming that it will hamper their attempts to recruit foreign workers. It will also discourage tourism to the US and enrollment of foreign students in American universities, because travelers are unsure how president Trump’s decision (or his next decision) will affect them. The stock market has declined in response to the ban, signalling investors’ worries that it will have a negative impact on the American economy.

Perhaps most importantly, Trump’s travel ban gives credence to the narrative of ISIS and other terrorist groups that the west is at war with Islam, confirms the belief that the US discriminates against Muslims, and serves as a provocation to attack rather than an enhancement of security. Trump’s claim that “this is not a Muslim ban” is belied by the facts: his support of a Muslim ban during the campaign; his claim that he will prioritise Christian refugees; and a recent statement by Rudy Giuliani that Trump wanted to devise a Muslim ban that would be legal, and was told to do so by appealing to national security. The benefits of the ban are nonexistent, but the economic, political, and humanitarian costs are very real. Insofar as we ought to maximise the good in making our moral decisions, Trump’s travel ban is morally wrong.

The second problem with Trump’s reasoning is that he assumes the existing immigration policy, whatever it is, is too weak. During the campaign, he insisted that immigrants be subject to “extreme vetting,” but this was a ploy to appear stronger on national security than Obama and Clinton. Given the statistics cited above, it is clear that US immigration screening prior to the ban had successfully protected Americans from terrorist attacks. So, what has happened now is that Trump has made his vague campaign posturing – what is “extreme” vetting? – into the basis of an actual policy, and without any indication of what in the previous immigration policy needs to be corrected. The travel ban amounts to a kind of misdirection. In the case of Syrian refugees specifically, he is not just reviewing their cases more carefully, but restricting the number of refugees who are allowed entry – not vetting, but prohibiting the resettlement of tens of thousands of refugees whom the US could help.

Furthermore, Trump wrongly sees immigration as an isolated act by which a foreign person gains entry to the United States. In fact, the act of emigrating is only the final step in an extensive, months- or years-long vetting process, a process that is even more involved for citizens of countries that are designated as state sponsors of terrorism. Refugees specifically must be designated as such by the UN and interviewed by US Citizenship and Immigration Services officers abroad. They undergo a background check, an investigation of potential terrorist links, and verification of their refugee status – a process that takes about three years for Syrians because of heightened security concerns. By the time an immigrant or refugee makes it to the US, we have already engaged the person for years, collected their fees and forms, and have given them a visa. Morally, then, detaining them at the border could be considered a breach of promise, the violation of a duty to them that we have taken on by inviting them to apply for visas in good faith.

Trump is also violating the spirit, if not the letter, of the Protocol Relating to the Status of Refugees, which the US signed in 1967. The agreement obligates the government to protect those who would be endangered if they were returned to their home country. The temporary ban and the decrease in refugee flows into the US not only amount to a refusal to help those in need. They break a promise we have made to the world community.

Finally, the new refugee policy fails to satisfy US obligations to protect human rights. Like all people, Syrian refugees have a right to life and freedom from injustice. Other countries have a corresponding obligation to protect those rights insofar as it can be done alongside their other duties. The Obama administration did not do enough, but Trump’s restriction means that the US is failing even more in its commitment to reduce suffering and protect human rights. The result is that Syrians will continue to be subjected to indiscriminate violence, or that countries in Europe and the Middle East will have to accept even more refugees. The US is thus placing a greater burden on countries that are already bearing a disproportionate amount of the costs: there are 2.7 million Syrian refugees in Turkey, 1 million in Lebanon, 600,000 in Germany, and only 16,000 in the United States. By not doing its fair share, the US is endangering Syrians and failing to alleviate the social and economic pressure on countries, including its allies, which are in some cases being politically destabilised.

Executive orders are not divine pronouncements. We must resist them if they are immoral and illegal.

The president’s travel ban is probably illegal, but it is clearly immoral. It disregards the suffering of non-US citizens while giving absolute priority to a false sense of security for Americans. It increases rather than decreases security concerns for US citizens, and hinders the American economy. By discriminating against Muslims, it contradicts the US’s longstanding and constitutionally guaranteed commitment to religious pluralism. It reneges on promises made to people who have submitted themselves to the country’s thorough and successful immigration processes, and it fails to honor international agreements.

Massive protests in the US are demonstrating to Trump and the rest of the world that the American people, by and large, do not see refugees and immigrant visa-holders as a security threat, and that they reject the anti-Muslim sentiment codified in the order. Organisations such as the ACLU should continue to challenge the travel ban in court. Early rulings by federal judges have been encouraging. And American lawmakers should use the power they have to oppose Trump on this issue – for example, by voting against Trump’s nominee for Attorney General unless he explicitly rejects the ban and vows, like Yates, not to defend it in court. Executive orders are not divine pronouncements. We must resist them if they are immoral and illegal.

 

About the author

Matthew C. Altman is Associate Professor of Philosophy and Chair of the Philosophy & Religious Studies Department at Central Washington University.


We encourage anyone to comment, please consult the
oD commenting guidelines if you have any questions.