Our View: Craft a More Coherent Refugee Policy

By Daily Editorials

February 7, 2017 4 min read

President Trump's executive order imposing new restrictions on refugees entering the United States from the Middle East and North Africa was rolled out in the same way the train in the movie "The Fugitive" came to a stop after striking a bus on the tracks.

The order halted for 90 days all travel to America from seven countries with "terrorist involvement," indefinitely halted all entry from civil war-torn Syria and suspended for 120 days any entry of refugees from anywhere in the world. For national security and public safety reasons, Americans must be confident that noncitizens seeking asylum here are properly screened. But Trump's method of achieving that goal is so overbroad and clumsily executed that it undermines the entire objective.

The order released late on a Friday; its restrictions went into effect immediately without any advance notice, creating chaos at airports around the world as travelers were suddenly stranded.

Those swept up in the order include foreign citizens who have heroically helped U.S. forces in the Middle East as interpreters and intelligence assets, often at great personal risk. Why should they be treated with such suspicion and disdain?

Meanwhile, some of the criticisms were overblown. Critics charged that the seven countries — Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia — were being singled out because they are majority Muslim. But Trump didn't create that list — the Obama administration did in 2015 and 2016, when it restricted visa waivers from those nations.

Trump's action is not unprecedented, just more sweeping. For example, the Obama administration in 2011 delayed processing refugees from Iraq for six months over concerns about terrorist infiltration.

But the precedent raises a much bigger issue: the legality of such executive orders.

Just as previous presidents have, Trump justified his action under Section 212(f) of the Immigration and Nationality Act, or INA.

However, other legal analysts argue that the section of the INA is overruled by a later amendment to federal statutes that prohibits discriminating in the issuance of an immigrant visa because of a person's race, sex, nationality, place of birth or place of residence.

Courts have ruled the Constitution grants Congress, not the president, plenary power "to exclude aliens or prescribe the conditions for their entry into this country." Congress can explicitly delegate to the executive branch a conditional exercise of that power, but the president cannot assume it on his own or override it with an executive order. It's time to resolve this apparent conflict, for now and the future.

Meanwhile, the Trump administration should return to square one and work with Congress to create an immigration policy that doesn't put our nation at risk but which is coherent, reflecting careful consideration — and not resembling a marching band falling down a flight of stairs.


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