The new executive order on immigration, dubbed “MuslimBan 2.0” signed March 6, 2017 presents a more nuanced, but still ultimately unconstitutional affront to religious liberty. Reviewing the redline version prepared by the ACLU of Massachusetts, coupled with the implementing memorandum to DHS, and the letter from AG Jeff Sessions and S-DHS Kelly to President Trump, a few themes emerge.

  1. How the new EO works (super briefly): Iraq is off the list. Effective date for remaining 6 countries is 3/16/17. Green card holders excluded from the new ban. Visa holders who have a valid visa as of 3/16/17 are also excluded. Refugee resettlement still paused for 120 days, but now includes Syria (which was indefinitely suspended in the old order) and does not include people formally scheduled for resettlement already. The cap on refugee resettlement is still cut to 50,000. But there are a number of exemptions to those who would otherwise be affected – these ‘waivers’ existed before but the new order goes into greater detail on what might constitute a waiver. Dual nationals are now exempted. But the EO still provides a mechanism to ban nationals of other countries, in a very similar manner, down the road.
  2. The Self-Licking Ice Cream Cone: The MuslimBan 2.0 is an ex post facto creation of justification of the need for the ban. Like I said about the Muslim Registry, it is a bigotry-flavored self-licking ice cream cone, a scheme that exists only to serve itself. Enforce a ban, then create a mechanism to create the facts to justify it. This, even though the (actual, non-alternative) facts *from within DHS* thus far indicate that citizenship is an unreliable indicator of terror threat, and 10 high-ranking current and former national security officials swore under penalty of perjury that such a ban not only doesn’t do what it purports to do, it actually undermines US national security.
  3. Propaganda Clauses: The order creates reporting benchmarks for future factual justification of its need. The joint Sessions/Kelly statement comes at the issue from the administration’s side, saying “we would benefit from a pause on immigration from affected countries,” essentially parroting Trump’s campaign rhetoric back to him. Trump directs Kelly to start publishing statistics on immigration – number of visas issued, green cards granted, etc. – all broken down by nationality. Every 3 months. Plus, reports on the costs of running the refugee admissions program. Simultaneously, the EO continues to mandate official government reporting of actions of foreign-born radicalization, terrorist attacks, attempts, and domestic violence (example: honor killings). Thus, as time goes on, a narrative can be built correlating visa issuance with terrorism, which will, eventually, survive constitutional scrutiny. Unfortunately, the administration’s tenuous relationship with facts and truth makes any such “reports” inherently suspect, and are better described as propaganda rather than “transparency” as claimed by the administration.
  4. Rigorous Inadmissibility: Although the classes of foreign nationals directly affected by the new MuslimBan are more limited than the original order, the implementing memo has a very concerning clause: “I direct the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of all other relevant executive departments and agencies (as identified by the Secretary of Homeland Security) to rigorously enforce all existing grounds of inadmissibility and to ensure subsequent compliance with related laws after admission.” This is a direct call to rigorously enforce immigration laws at the border, and should be seen as a counterpart to the calls for enhanced enforcement in the interior of the US, which has led to the ICE raids we’ve seen over the past month. Remember – both officers at overseas consulates and border officials have a great deal of discretion to deny entry to foreign nationals. This is a call to “unshackle” them, giving them even greater latitude.
  5. Plenary power: The new EO contains the same, if not enhanced reliance on Section 212(f) of the Immig. & Nationality Act (INA). This will continue to be the foundation of the administration’s legal argument: that Congress has total power over immigration and the admission and exclusion of foreign nationals. Some of that power was delegated to the President, who can suspend entry of any particular class of foreign national he wants, while making it appear more digestible (by a 10 day phase in, excluding say, green card holders, etc.)
  6. “Not a Muslim ban because we say it isn’t.” The new EO is cognizant that this looks, talks, walks, acts, breathes, and otherwise is a Muslim ban. And the reckless statements of the administration keep coming back to haunt them. Thus, they smartly recognized they would have to sever religious animus on campaign trail and the first ban from the new ban. They did this, largely, by merely stating, “This is not a Muslim ban.” The Sessions/Kelly statement says the ban came from countries that are state sponsors of terrorism, or countries where territories have been lost to extremist groups. But if that’s the case, many other countries should have been included – even under a restrictive, Muslim-only definition of terrorism. These, and other reasons (such as the delay in implementation for non-urgent reasons, delays requested in court proceedings, and persistently pesky real facts) undermine the administration’s stated rationale. But whether a rationale is good or not will not be the subject of judicial review: there must be a violation of the law. Make no mistake: this is still a Muslim ban, and remains so regardless of the shade of lipstick applied to the pig.

The new ban still suffers from a very ominous deficiency: both the administration and terrorist groups stand to benefit from another attack. This is one reason the 10 national security officials stated these types of blanket bans are a bad idea, even if they are later tempered. Our judiciary took care of the first ban, but this administration has a narrative they want to protect and nurture. And they will keep blue penciling this order until some court somewhere upholds it.

There will be legal challenge. Where any new case is brought will have tremendous effect. I suspect some of the ongoing litigation will be turned to the new order, since it raises many of the same issues.
What are some things ordinary folks can do?

  1. If you’re a lawyer, we need you. Amicus briefs. Helping us find plaintiffs. Volunteer at airports (shout out to www.dullesjustice.org!) Offer to take a case under the supervision of an immigration lawyer. (Message me, I will help you!)
  2. If you know another language, reach out to a local immigrants’ rights group and offer your services to help translate or interpret.
  3. LIGHT UP the switchboards on the Hill. Let your congressfolk know that siding with the administration will cost them.
  4. Protest, protest, protest. Show up at airports and rallies. Spread your beautiful exercise of First Amendment rights on social media.
  5. Support an immigrants’ rights organization monetarily. There are too many to list here so I’ll ask folks to post them in the comments below.
  6. Go hug a lawyer. Yes, we need love too.

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