When President Trump was campaigning for office, he repeatedly made promises to “build a wall” and to secure the borders of the United States.  In an Executive Order, the president made good on this promise in part by suspending the admission of all people from seven countries identified by the Obama administration as taking some role in sponsoring terrorism.  Let’s try to examine this policy from several perspectives to provide a critical analysis of this issue.  What is the basis of this policy? What is the bigger issue here?  This post is a starting point for discussion and does not represent an examination of the issues in their entirety.

What happened?

What does the executive order say?  Well, it says that the United States “suspend[s] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order.”  The Department of Homeland Security released the list of countries included in this suspension later: Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen. 

The immediate effect of this executive order, as implemented by border security caused a number of problems for airlines and airports as well as the immigration officers.  Without sufficient guidance, all individuals were stopped at borders from these countries and refused boarding to airlines.  Airlines must refuse boarding to individuals that are likely to be refused entry to nations because the airlines face fines from governments if they do not take proper care to ensure

admittance.  I witnessed a passenger attempting to fly to Taiwan and then on to another location with only a one way ticket to Taiwan and no further travel documents.  This passenger was refused boarding without demonstrating documents of either a visa to stay in Taiwan or documents for traveling out of Taiwan.

A number of protests formed at various airports around the major international access terminals against the executive order.  None of these seemed violent, though they disrupted access to and from the airports for other travelers.  In some cases, like at New York’s JFK airport, the taxi services joined in protest and refused to pick up or drop off from the airport.  Uber also changed their pricing policy to deal with the increase demand as well.

In response to this executive order, democratic advocates filed lawsuits in several states in an attempt to stop the implementation of the order.  Lawsuits in New York, Massachusetts, Virginia made rulings on lawsuits filed.  Most of these rulings were localized to the airports within the purview of the court.  For example, a Boston court ruled that people detained at airports under this order must be released from Logan International airport.  The court in Washington state, however, gave a very broad ruling in a case filed on behalf of Washington against the US government.  The court issued a stay of execution of the order while the courts decide the case.  The basic argument from the state of Washington is that the order harms the state of Washington and has standing go sue the government over the order.  Without damages, the state cannot sue.  The court decided that the case has merit and the state has standing and that the case should be heard, during which time the implementation of the order must be suspended.  The federal government filed an emergency appeal against the judge in the 9th circuit court of appeals located in San Francisco California.

The 9th circuit court ruled today that the state of Washington has standing as it has been harmed by this policy.  In their ruling, they stated that since Washington State has universities that were harmed by students and faculty unable to return to campus, they are able to sue the government over the policy.  The judge also stated that the president’s assessment of national security threat is exaggerated.  This pits the government’s argument on national security interests against the state’s argument of harm and damages.  It is important to note that 9th Circuit Appeals court has been overturned more times than any other court.  More than 80% of their decisions are subsequently overturned and they are seen as the most liberal, progressive courts in the United States.

What’s the bigger issue?

There are several important questions involved in this case. First, there is an important question of executive authority on control over immigration.  Does the president of the United States have the right to issue an order that prevents individuals from entering the United States who are not US Citizens?  Second, what is the purpose of this policy?  The policy is described as protecting the United States from potential terrorists entering without proper vetting.  Perhaps this policy relates more to relations between these seven countries and the United States and less about securing the US from terrorists.

Under the Obama administration, the president issued very clear executive order allowing millions of immigrants into the nation without fear of deportation.  The U.S. Supreme Court precedents dealing with previous cases give broad latitude for the executive to decide who is permitted to enter the United States and who should be removed from the United Stats.  In general, Congress makes laws regarding immigration and the Executive branch is responsible for implementing the laws.  As stated by Cox and Rodriguez int he Yale Law Journal , the current state of law in the United States “has enabled the President to exert considerable control over immigration law’s core question: which type of noncitizens, and how many, should be permitted to enter and reside in the United States?”1  Congress in the United States can pass laws to limit presidential authority if they wish, and Congress has done so in the past.  If Congress believes that the president overstepped bounds in this case, they can restrict the President’s power.  It is very likely that this case, whether it goes to the Supreme Court or not, will go in favor of the president given the current state of law.  In practice, how the executive order gets implemented under Trump may change and relax, as they have done already for permanent residents.

The second question asks if this order is something more than an order intended to protect the United States from terrorism.  In general, this appears to be primarily a desire from Trump’s Administration to simply come through implementing one of their promises.  Trump has become the president who does what he said he would do.  Many discussions in the punditry on Trump’s policies discuss the extent to which he is trying to implement all the policies he said he would implement during the campaign.  This was a surprise to many on the left and right believing that he would back away from campaign promises as so many presidents have in the past.

It is not clear whether this policy is designed as anything more than this and whether it has a larger message.  The policy does not ban Muslims from entering the United States even though the majority of those affected are from Muslim nations.  It is disproportionally affecting Muslims, but this is different from saying that Muslims are not permitted to enter the United States.  In addition, this does not hit hard at all the nations with people who have participated in terrorist attacks in the past.  It is imperfectly implemented in either of these cases, and therefore we cannot make a clear determination about the broader intent here.  Perhaps this sends a strong message to Iran which has been a target of much of the new Administrations rhetoric because of the nuclear deal, seen by the President as a very “bad deal” for the United States.

So, what do I think?

All nations have the right to decide who enters and exits their countries unless they give that authority to a third party.  This is clear in international relations based on the concept of a sovereign nation.  States may certainly give up some sovereignty and provide that authority to other institutions as countries have done in the EU.  If you ascribe to a realist view of the world, then sovereignty is a given assumption about the world.  If you ascribe to a more constructivist view, then sovereignty only exists in the context of rhetoric and interaction among states.  Britain has decided that they wanted to regain control over their own immigration policies and the EU refused to allow them that control, resulting in the Brexit vote and current negotiation stalemate.    At some point in the future, it is certainly possible that nations decide the sovereignty norms are inappropriate and provide greater movement of people across borders.

When we discuss problems of human trafficking, we often talk about source and destination states.  In the case of freedom of movement, we would also likely see nations with less development as sources for migrants to more developed nations.  The developed nations provide greater services and benefits to migrants and offer greater job opportunities with more pay.  This means that there is often a transfer of wealth from those developed nations to the developing nations.  Domestic populations in developed nations often oppose such changes because they will receive less benefits and fewer job opportunities.  Employers and large corporations often benefit from new immigration because they have greater number of laborers at cheaper pay rates, less benefits, and perhaps harsher working conditions.

In all cases, there are always winners and losers from policy changes.  When we evaluate positions, we should step outside of our personal position and ask who those winners and losers are.  We might advocate on one side or the other because we are a member of the winning or losing group, but at least we should make an effort to understand the other side before advocating.

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1 Rodríguez, Cristina, "The President and Immigration Law" (2009). Faculty Scholarship Series. Paper 3908. http://digitalcommons.law.yale.edu/fss_papers/3908