(NOTE: This article is being written in advance of the new Executive Order designed to function in place of that order of 27 January which has been partially blocked by the 9th Circuit. It is designed to be predictive in nature.
When the new order finally is released, expect to see this updated with comparisons, but I’ll try to leave my predictions intact so you can see how smart I am — or how foolish, just as the case may be. The new order has now been released; comparisons are in a separate section at the end of the article.)
One week after taking office, President Trump released an executive order banning travel to this country on certain passports. I’ve written extensively on the pros and cons of accepting refugees, on the ways the ban went horribly wrong and why, and on the justifications for that ban. Combining that with the decision of the 9th Circuit to block some of its implementation, we should be easily able to predict what’s about to get ordered.
First, the intent of the original ban: As linked above, the initial Executive Order was designed ostensibly to prohibit terrorists from entering the United States from specific countries. The policy it was designed to support is a difficult one to oppose, at least in principle:
It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.
The method of implementation was an immediate ban on travel, which, combined with the enforcement provisions and screening methods and targets contained in the order of the 25th, soon became untenable. The idea behind the rapid implementation was that, in order to eliminate any last-minute terrorists who wanted to get in before the deadline, no warning was to be given. (Bear in mind that the chaos that arose from enforcement of the ban did so as a result of the concatenation of these two orders, notwithstanding that an important error in the first still has not been addressed. Oddly, no major media outlets seem to have picked up on this.)
But, as the order of the 25th has not been contested, let us continue with that of the 27th which has. It is designed to do the following, in particular; and we can presume that all those which are purely internal procedures of the Executive Branch are still functioning:
- Homeland is directed to review documentation requirements to make sure people are who they say they are, and that they’re not avowed terrorists or active enemy combatants. That report is due on 26 February. Until that report can be read, digested, and its changes implemented, every traveler from those countries with doubtful passport controls is summarily banned for 90 days. Once the report is finished, we will immediately give the countries on the list specific instructions on which documentation changes we’ll require.
- All relevant agencies are directed to establish a uniform screening process, using perfect communication between them, which will be designed to catch fake passports, multiple entries under a single name, et cetera.
- Refugee admission under USRAP is suspended unilaterally for 120 days while the above screening process is implemented. Afterward, refugees claiming religious persecution can be prioritized if, in fact, their religion is in a minority in their home country.
- All Syrian refugees are banned until they can be screened. A cap of 50,000 total refugees from anywhere is imposed for 2017. However, exceptions can be made for various reasons — including international treaty (see Australian Refugees).
- Incidentally, the President requests the appropriate branches to consider avoiding granting waivers for known terrorists. (Apparently, he thinks it would be unwise, but he doesn’t want to step on anyone’s toes. Oddly polite, this.)
- Expedite biometric tracking. We have the technology to make sure every passport is linked to biometric data for its validation as being used by its true owner; let’s make it happen.
- Interviews for visas may no longer be waived, and State is directed to hire enough translators to make that happen.
- Quid Pro Quo – If another country messes with our visas, we can mess right back.
- Certain criminal acts by refugees and immigrants from at-risk countries will be tracked and reported regularly, and the costs for accepting refugees will be publicly available.
The decision of district courts to issue a temporary restraining order on aspects of this executive order was upheld, for the most part, by a ruling of the 9th Circuit; that ruling contains all the relevant information and can be read here. In particular, these three portions were blocked, and the government’s appeal of the temporary stay was denied:
- Syrian refugee ban (item 4 above, underlined)
- Temporary suspension of USRAP refugee immigration (item 3 above)
- Temporary suspension of all travel under certain passports (item 1 above)
It’s important to note that every other provision of this executive order remains in force, and that enforcement of these three sections have only been temporarily stayed.
Let us also consider that, as the 9th Circuit reported, “sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents.” (That’s holders of ‘green cards’, if you’re having trouble following.) No doubt any replacement or supplemental order will take this into account.
According to the most recent information available from the White House, the government will continue to fight the stay through the courts; since two of these three stayed provisions are temporary, however, it’s likely that only the blanket Syrian ban will continue to be fought there. And, considering that this last is a simple up-or-down decision, I’d consider it unlikely that it will even be covered in the replacement order.
Now, as I’ve argued elsewhere, the suspension of travel under certain documents is justifiable. The short version is, due to loss of control of the passport apparatus by the government in those seven countries, or due to the government’s probable cooperation with terror organizations, there’s a very good chance that valid official passports have been issued that cover known terrorists or (more likely) their financial handlers under false names.
I want to be clear: While the order itself may have been intended to simply delay or obstruct all refugees, for our purposes here we only care whether the stated intention is in fact viable and whether the new order accomplishes the stated intent. For the sake of this discussion, it wouldn’t matter if the Administration actually was run by the KKK, Satan himself, or even the damned Nazi Party; the purview of this examination is to find what’s needed for the new law to be both valid and defensible.
The logic is as follows: Until biometric tracking becomes standard on all travel documents, there is a legitimate reason to mistrust any document that doesn’t have it. Therefore, there exists a legitimate reason to interdict anyone who relies on one of those documents, to demand such protections of other countries, and to rapidly install and implement a national and if possible international tracking system that runs on biometric data.
The only objection likely to be raised is the following: Is it not an unusual and excessive invasion of personal privacy to require unique biometric tracking on our travel documents? And, while I have my own doubts and objections, that’s likely a matter for courts to decide; in any event, it’s outside the purview of this analysis.
Therefore, what we’re likely to see in the new order is a reasoned argument for temporary bans of certain travelers using certain passports due to their vulnerability. Because the “religious minority” requirement for expedition in the original order is going to be the sticking point in a court-ordered hold, it will be removed from the replacement text; more to the point, if it’s desired, it can be stated as a matter of internal policy and be subject to no external review.
The above then would be a very short executive order, and we’re told that the present language and terms are even now being vetted in Congressional committees and by the various national security offices. There would be no need for detailed review if the new order were indeed that brief. Remember too that the initially ordered Homeland report on the implementation of new vetting measures is due in a very few days; it would be unreasonable to assume that its contents and conclusions will fail to be considered. The text of the two recently leaked memos from Homeland (courtesy the Washington Post) shows that this agency has acted promptly on the other two orders and provide us with an outline of the sort of action we can expect.
Based on this, then, we can call it probable that the revised order will refer to this completed report; that it will include temporary bans for anyone traveling on passports or documentation that fails to meet certain recommended standards; that it will at least tacitly exempt documented permanent residents of the United States; and that it will contain updated standards for other countries to comply with for their passports to henceforth be considered valid. Because the district courts of the United States will have no jurisdiction on a large percentage of those detained outside the borders of this country, the Order will either direct non-residents be stopped before entry or redirected to temporary holding facilities outside the United States. And, since both of those are potentially problematic from a practical (political) standpoint, we’re very likely to see a revision of the rights conveyed by certain forms of temporary residency such that additional deportation facilities can be employed — this last quite likely concealed under a different cover.
I believe this new order will be released on Monday, 26 February, thirty days after the initial order and pursuant to the report requested from Homeland.
In crafting orders that are actionable, it is vital to remember that, under our system of government, Congress crafts the laws, the courts interpret them, and the Executive Branch makes them happen. If there are to be any sweeping changes by the Executive, therefore, authority to make them happen must already exist within current statute. If that authority is granted to any specific agent of the Executive (say the Director of Homeland Security) then power by implication rests with the office of the President to instruct that Director in how that authority can be used. As a result, the final text of the new order will most likely be primarily as directions to such officials under that existing law.
This means that, if properly crafted, there is no easy way to counter the power of the Executive Order. Which, for good or for ill, is how we’ve designed our government: with a powerful (some would say Imperial) Executive. We can work to change that, of course, but for right now, we’ve got quite a ride ahead.
(The applicable law for these orders is 8 US Code § 1181-9 and is available here, courtesy the Cornell University Law School; if you’re in doubt as to your right to use or quote, please refer to their terms and conditions.)
UPDATE: Feb. 28 OK; here’s a little background. You’ll need it, so pay attention.
“Background”, when it comes to a press briefing means that not only are no exact quotes permitted, even the facts given in a background interview are forbidden to be reported by most codes of journalistic ethics. Incidentally, those codes translate nicely into professional standards when you’re talking a civil suit.
So, when the White House sent out a notification that a background briefing on the President’s upcoming speech before Congress, I expected nothing at all from major media. However, when the post-briefing release on today’s executive orders also produced no stories, I started digging a bit. Apparently, this too was supposed to be “background”, and some members of the White House press corps are furious. They knew exactly what was going to be discussed, but because the briefings were to be considered as background only, none of them can report on what they know lest they face an indefensible civil suit from the government of the United States.
This actually plugs the leaks, because the reporters can’t use what they know unless they’re prepared to prove that they know it from somewhere outside the briefing room. It’s bloody genius.
(I was not invited, and I don’t subscribe to the wire services. So even if I actually had any money, nobody would be able to successfully sue me. Especially since I haven’t spoken to any reporters about this. Neat, huh?)
One other thing: There’s been some shell-game style misdirection about these orders and about four bills currently awaiting the President’s signature. Bear in mind, it’s normal for there to be a delay between signing and publication. My information, which comes entirely from tertiary sources, suggests strongly that the replacement refugee order has already been signed and will be released simultaneously with an order supporting minorities, another aiding LGBT*, a third involving terrorism, the two bills about women, plus the one bill about gun control versus privacy. The vast amount of distracting chaff will scatter media attention, and tomorrow’s address before Congress will soon dominate the media cycle afterward. There’ll be one day of media coverage on the orders, and it will be partial.
I am forever amazed by this administration’s ability to control the news.
And I’m concerned that one of the announcements will be the setting up of refugee camps that are not deportation processing centers but rather detention facilities. This has me worried. But there’s no evidence right now to support this and every reason to doubt it, despite some of the gossip, so — while I’m worried, it’s not reasonable.
UPDATE: 28 Feb. post-speech: No hard word on the replacement refugee order. Given the President’s schedule, it’s unlikely that it was signed today, but remember my speculation that it had actually been signed earlier and not released. Not even a hint of my expected LGBT* order has come to pass. Gun control/privacy did go out, as did — and this has me a bit shocked — an order to revise the Clean Waters Act.
Note that the contents of the speech were not leaked, and that the release of information from the press office was very tightly controlled.
UPDATE 01 Mar AM: AP reveals it has obtained a draft of Homeland’s report, and that Iraq has now been removed from the ban. Their assessment otherwise matches mine.
- The previous travel ban is removed and replaced by this order, which explicitly names seven countries and the reasons and conditions for each. Iraq has special status but the lack of proper passport controls is specifically mentioned here and particular screening is ordered. The other six countries are under a 90-day ban. (Note that this ban is the same length as that of the preceding order.) The exceptions, which were given under separate memorandum before, are here codified within the order.
- Uniform screening process, as before. Language here has been improved.
- USRAP has again been suspended pending review of procedures for 120 days. The conditional exceptions previously granted have been removed from the order.
- Syria is not explicitly mentioned for any targeted permanent ban of refugees. Instead, the blanket ban was made uniform. Provision has been included for refugees admissible by treaty, as before. Likewise, the 50,000 refugee cap has been ordered again, though now it will be easier to get around it if desired.
- The President again requests the appropriate branches to consider avoiding granting waivers for known terrorists. The language is less polite.
- Biometric tracking is, again, to be expedited.
- In-person interviews are still mandated for nonimmigrant visas. The order again specifically mentions statutory exceptions, as well as hiring additional translators.
- The visa reciprocity ‘Quid Pro Quo’ section has been reordered.
- The crime tracking included in the previous order has been put into effect outside this document. Here, the language has been revised to discuss transparency, but the substance is still the same.
There are several notable differences, which include:
- This order is not effective immediately but instead starting ten days from today.
- The exceptions to the order are now contained within it rather than relying on external documentation.
- Any discussion of religious persecution, to which the courts had previously objected, has been completely removed.
- Syria is not singled out for specific treatment. Instead, all refugees are banned.
- The order now recognizes hardship explicitly as a reason to grant exceptions. This is notable because it had been a foundation of certain objections raised in the courts.
- Specific mention and reasons for each targeted nation has been made. These include passport controls and state-sponsored terrorism. Iraq has been subjected to limitations and additional screening but not a ban. It is worthy of note that this corrects the highly problematic typo in the previous document.
- Separate provisions of the order are now severable. Even if certain portions are considered excessively onerous (which will be difficult to demonstrate in court), non-general objections should not impact the order as a whole. Moreover, some departmental instructions which may have been considered objectionable have been issued under separate cover.
As I’ve argued before, the travel ban is potentially justifiable, however odious we may find it. This revised order contains simple and relatively easy to understand explanations for the reasons, but of course if you’re interested, many are referred to in my previous article (which can be read here).
And this order, as revised, is difficult to protest effectively and will be almost impossible to block in the courts.