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Op Ed: Tweets, Executive Orders and “Xenophobic scapegoating”…. Unconstitutional?
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Mona Shah, Esq.</span></span>
At 10:06pm on Monday, April 20th, without warning, there was a lone tweet
issued by President Trump :“In light of the attack from the Invisible
Enemy” – a phrase he commonly applies to Covid-19 – “as well as the need to
protect the jobs of our GREAT American Citizens, I will be signing an
Executive Order to temporarily suspend immigration into the United States!”
<strong>Trump’s tweet was immediately condemned: </strong>
“When you’re a xenophobe, bans on migration are the only tired, failed,
hateful solution you can think of. Suspending immigration won’t make
the US — which currently leads among COVID cases worldwide — safe. Our
policies need to be grounded in public health, not bigotry.
” ~ Amnesty Intl Advocacy Director.
Republican Senator Chuck Grassley of Iowa said he doesn’t know if Trump’s
pause on legal immigration makes sense. “ <em>We’ve been a welcoming nation and we need people.</em>”
President Trump now seeks to distract us from his fumbled COVID-19
response by trying to put the blame on immigrants. The truth is many
immigrants are on our front lines, protecting us as doctors, nurses,
health aids, farmworkers, and restaurant workers
.” ~House Judiciary Chairman Jerry Nadler (D-N.Y.)
The result will not be nearly as dramatic as the bark of the Tweet!
President Trump’s tweet was purposefully general, lacking clarity as to
which immigration programs would be affected and adding to the dramatic
effect. The rationale behind the Executive Order is to save US jobs for US
citizens! It appears that the Executive Order would really be more of a
pause lasting 60 days, applying to those seeking permanent residence (green
card), and would include major exemptions, such healthcare workers and
temporary farmworkers–the biggest source of immigration at the moment. It
is also to be seen as to whether EB-5 investors would also be exempt, as
after all EB-5 is a job creating program for US citizens.
Of course, Trump was aware this Tweet would raise an uproar. Cracking down
on illegal immigration and a promise to erect a wall at the Mexican border
formed the centerpiece of Trump’s election campaign in 2016. His Gallup
approval rating slipped six points last week as scrutiny of his handling of
the outbreak has intensified, and the U.S. leads the world in total
reported cases. Some have commented that the decision would have
significant political ramifications. Cutting off all immigration would
bolster Trump’s standing with his hardline conservative base, but anger the
business community, which wants Trump to ease restrictions on temporary
worker visas. Conversely, if Trump chooses to exempt any temporary workers
from his immigration ban, he’ll bolster his standing with the business
community but risk creating a backlash among his more conservative base.
Nearly all visa processing by the Department of State, including immigrant
visas, has been on hold during the pandemic. Asylum claims have also been
suspended in effect, with thousands of people being swiftly returned to
Mexico, without due process, which the UN has described as a violation of
international and US law.<sup>1</sup> (This novel policy of systematic and
rapid expulsions constitutes “refoulement” – the forcible return of
refugees or asylum seekers to a country where they are liable to be
subjected to persecution – which violates US and international laws and
treaties designed to protect people at risk of persecution, torture and
<strong>Will Trump’s Actions be Deemed Unconstitutional?</strong>
Trump’s boldness stems from his confidence that the Supreme Court appears
to be already on his side following the travel ban decision in 2018, which
will give Trump powerful legal ammunition should he carry out his
immigration pledge. The Supreme Court in a 5-4 ruling on Trump’s travel ban
stated that the president has sweeping authority to restrict entry into the
country. The specifics may not matter. The 2018 Supreme Court
pointed to a federal immigration law that lets the president suspend entry
of “all aliens or any class of aliens” if the Chief Executive finds that
their arrival would be “detrimental to the interests of the United States.”
That provision “<em>exudes deference to the president in every clause</em>
,” Chief Justice John Roberts wrote for the five Republican-appointed
justices in the majority. The court’s four Democratic appointees dissented.
Roberts dismissed contentions that Trump hadn’t done enough to justify his
travel ban, saying those arguments depended on the “questionable” premise
that the law requires the president to give a detailed explanation.
Justice Clarence Thomas went further. In a concurring opinion, he said
that, even without federal immigration law, the president “ <em>has inherent authority to exclude aliens from the country.”</em>
However, it is argued that the President simply cannot change statutes of
the United States with executive orders, even if he is citing the emergency
powers that stem from the police power granted to the Executive Branch.
Such emergency actions need to be narrow in time and narrow in scope, and
they need to be tightly connected to demonstrable public health concerns,
only then would such emergency actions likely be upheld by the courts as a
legitimate exercise of the police power.
Suspending immigration indefinitely is not a proper use of the powers and
likely does not pass the constitutional or common law standards. Law
Professors throughout the US argue that the President’s tweet would simply
Stephen Yale-Loehr, Professor of Immigration Law at Cornell Law School,
stated that the executive order will almost certainly face legal
An executive order suspending all immigration into the United States is
outrageous and likely unconstitutional. It is one thing to suspend
immigration for certain categories of people such as terrorists. It is
quite another to suspend all immigration. We have never done that
before, even during world wars. Litigation is sure to challenge any
such executive order
Ilya Somin, a critic of the travel ban ruling and Professor of Law at
George Mason University argues that the travel ban ruling makes any
challenge to the new order “<em>an uphill fight.</em>” He said presidential
supporters could argue that the difference between the two orders is “ <em>just a matter of degree</em>.” Notwithstanding this, Somin said he
could envision possible lines of attack. “
You can also say that the difference in degree is so great that it
becomes a difference in kind,
” said Somin.
Professor Yale-Loehr’s opinion is echoed by Ian Kysel, visiting Assistant
Clinical Professor of Law at Cornell Law School, is Co-Founder and Director
of the International Migrants Bill of Rights Initiative. Professor Kysel
states that the proposed executive order would violate basic international
human rights law.
President Trump has announced (without any detail) that he will
unilaterally seek to end immigration to the U.S. to fight the
‘invisible enemy’ (presumably COVID-19) – an action that, if attempted,
would have devastating consequences for families, universities,
businesses and communities around the country.… Even more than
doubling-down on an apparently xenophobic effort to dismantle the U.S.
immigration system, a blanket ban unmoored from public health
imperatives violates basic international human rights law obligations.
Binding treaties the U.S. helped draft prohibit such indiscriminate
acts of political theater, including because they prevent refugees from
receiving sanctuary and tear families apart.”
About The Author<br/>
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<p><a href=”http://mshahlaw.com/about-us/” target=”_blank”>Mona Shah, Esq.</a> Born in the UK, Mona graduated from the University of Northumbria in England (UK) in 1990. Mona was admitted as a Solicitor of the Supreme Court of England & Wales in 1993 and was admitted to the New York Bar and the United States Federal Bar in 1997. While in England, Mona trained with various firms before her appointment as a Crown Prosecutor with the British Crown Prosecution Service. After moving to New York, she established Mona Shah & Associates Global (MSA Global) in 1997. Mona has over 26 years of legal experience.
A part-time adjunct professor at Baruch College, CUNY University, Mona is a published author, a Lexis Practice Advisor and co-editor of the Trade & Invest Magazine (BLS Media). Mona regularly speaks worldwide, interviewed by mainstream news channels, including Fox Business News, Al Jazeera and quoted in major newspapers, including the New York Times. Mona is a member of the Presidential Advisory Board of IIUSA, and hosts the first EB-5 podcast series (88+ episodes).</p>
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