The recent order to ban immigrants from seven Muslim countries has generated a lot of misinformation. With the hearing on the district court order staying the president’s order being argued today in the court of appeals, it would be nice to get a few facts straight on what is being argued by our own federal government.
Three other federal district court judges have concurred that the presidential order appears to be unconstitutional (one district judge disagrees) because it violates the Establishment Clause of the U.S. Constitution and previous case law prohibiting restrictions on immigration based on religion and country of origin. The presidential order identifies seven countries — all majority Muslim countries — for the ban, which plaintiffs argue is a ban based on country of origin. Furthermore, it allows for exceptions based on religion — Christians and other “oppressed” minorities in the banned countries are allowed to immigrate while the majority Muslim population is not. Plaintiffs argue that this is, in effect, a Muslim ban since non-Muslims are excepted and even though minority Sunni Muslims are being slaughtered at a far greater rate than Christians who are permitted as an exception.
So, the facts are that it is a ban based on country of origin and based on religion, and an obvious violation of the constitution. Attorneys for the administration are arguing that there is an exception based on national security concerns, and there is precedent for this exception, except they are not really arguing within the limitations imposed on previous exceptions. Rather, they are arguing that the courts have no jurisdiction at all because the president has declared the basis of the ban as being one of national security. They argue that the judges should not make their determination based on “facts” or a “rational basis” for the ban, but rather on an expansion of presidential power that “trumps” any constitutional concerns.
The argument that facts and any rational basis to the ban should be ignored is a key for the administration to win since both the facts and rational basis for Mr. Trump’s order are lacking. There is no fact that immigrants from these countries have committed any acts of terrorism against the United States or present a danger to national security. Most of the immigrants are young children and their mothers, and they have been vetted and waiting an average of 1 to 2 years for a visa. Many of the immigrants from Iraq actually are targets for terrorism because they, or some other family member, has been assisting the American war effort. Most of the immigrants are relatives of U.S. citizens or sponsored by citizens. With the exception of 9/11 (committed by Saudis and UAE citizens) all terrorists acts since then have been committed by radicalized U.S. citizens.
There is no rational basis for the ban either, since virtually the entire national security establishment, including the departments of defense and homeland security, the FBI, the NSA and the CIA, and the joint chiefs all agree the ban itself compromises national security. So, the administration attorneys are forced to ask the judges to ignore facts and rational arguments related to national security as the basis for the ban and simply rule that if Mr. Trump orders it as a national security measure it should be done. They are essentially arguing that the judges should “know nothing” and rule in their favor. For you students of history the term “Know Nothing” is significant.