The first executive order is called "Protecting the Nation From Terrorist Attacks By Foreign Nationals."
The second executive order is called "Enhancing Public Safety In The Interior of the United States."
It stands to reason that the administration, in its zeal to deliver swiftly and visibly on campaign promises, begin with hardline anti-immigration policy outside the United States, as the President has nearly unfettered authority granted by law to control the admission of aliens into the United States. See INA 212(f). It is legal to discriminate on national origin or political and/or religious ideology when it comes to admission of aliens. For an administration that embraced nativist rhetoric that ultimately won the White House then, starting at the border is the low-hanging fruit. It's easy to come up with any scheme desired, because courts are unlikely to step in to stop it.
Enter Trump, Kobach & Co. These executive orders on immigration reek of nativist rhetoric. They are framed by a narrative of Muslims (and especially Syrians) as terrorists, and immigrants as threats to public safety. Like its failed predecessor, NSEERS, it blacklists entire countries, and mandates a scheme that will enable countries to continue to be blacklisted by executive fiat, while placing the blame on those countries for being blacklisted. They utterly fail to recognize a single redeeming quality of any immigrant, preferring instead to look only at an "alternative fact" balance sheet of liabilities.
Turning attention towards the inside of the United States, the administration seeks to deliver on its promise to deport. They need more officers and they'll get hired. But it's still not enough - there are too many people. So they will crowdsource deportation to law enforcement around the country, and anyone else who dares challenge the administration's authority. Because the number of aliens with serious criminal records is too low to satiate the administration's nativist base, prioritization schemes have been eviscerated. Everyone is subject to deportation, and their due process rights (limited now) will likewise be eviscerated.
For each blanket ban, the government gives itself authority to grant exemptions - what remains to be seen is what color the "exemptions" are. It also gives itself even more authority to deny visas.
No administration-turned-regime would be complete without a bit of propaganda. So, under guise of keeping the public informed, it will publish lists of immigrants with criminal backgrounds, terror-related convictions, and the like on as much as a weekly basis. This will become part of a permanent government record, an official narrative that feeds off its own policy, laying the groundwork for future dystopian policy.
Here's how they work:
The order's salient points:
- The Order claims that protection of the nation requires those who commit acts of bigotry and hatred, violence against women (including "honor killings") or persecution of a protected class. The Order does not state the obvious: that all these acts are already grounds of inadmissibility under INA 212. The Order also includes a vague reference to "not supporting the Constitution" as a visa requirement. That way, if the admitted immigrant does something the government doesn't like, they can be caught in a lie. This same requirement currently exists for naturalization - but it also provides a way to denaturalize a US citizen. See 8 USC 1451(c). They've taken a rather obscure law and made it generally applicable. That's a recurrent theme throughout these orders.
- The Order blacklists entire countries. It does this by creating a scheme that requires the Secretary of Homeland Security to determine, within 30 days, new requirements the government will now need in order to adjudicate a visa application. It could be anything - as the earlier section stated, knowing whether a foreign national supports the US constitution or has engaged in an act of hatred would make a visa applicant inadmissible. The report must list countries that do not or cannot provide the required information. While this report is being generated, nationals from 7 countries will be flatly refused entry into the US. These countries are Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen. This is the first iteration of Trump's "total shutdown of Muslim immigration until we can figure out what the hell is going on."
- After the 30 days are over, we will have a new list of blacklisted countries. These countries will be listed on a Presidential Proclamation, and will have the force of law. It may be the same 7 countries from the immediate 30-day ban, or more or less. Those countries will have 60 days to start providing the required information, whatever it is, if they want their nationals to be able to enter the United States. For those countries on the Proclamation, blacklisting will continue until compliance with the requirements occurs. Thereafter, any country may be blacklisted at any time.
- Individuals from blacklisted countries may, during any blacklisted period, be admitted on a case-by-case basis.
- The visa ban affects all nationals of these countries who are not US citizens. That includes green card holders.
- The President has been empowered by Congress in section 212(f) of the INA to exclude any class of foreign nationals, with nearly no limitation. Thus, the scheme in the Order and resultant Proclamation will likely survive constitutional scrutiny, shielded by the plenary power doctrine.
- Section 4 of the Order is the creation of a scheme of "extreme vetting." The language is extremely vague - not unusual for executive orders - that merely mandate creation of mechanisms to verify identity, criminal intent, and likelihood of ability to contribute to the United States. The contribution portion is new: while it is beyond dispute that immigrants contribute, blending it into the requirements for a visa may pose an insurmountable obstacle and yet another extremely easy way to deny admission.
- The Order shuts down all refugee resettlement for 120 days, and for Syrians indefinitely, during which time vetting procedures are ordered to be, for lack of a better term, vetted. The scheme is similar to the blacklisting procedure described above: after 120 days refugee admissions will resume only for countries that pass the newer, more stringent requirements. Refugees who would have been admitted 120 days before may only be admitted if they pass these newer requirements. This is akin to completing a college degree, only to be told on stage that you have to go back and take another class.
- Refugees fleeing religious persecution will be prioritized, but only if they are a minority religion in the country. This clearly means non-Muslim minorities.
- Moreover, the worldwide cap of refugee admissions will be reduced to 50,000. The 120-day shutdown will be used to pick and choose which refugees to admit. My educated guess is it will not include many Muslims. There is a case-by-case exception to the 120-day shutdown as well
- The plan for Syrians is truly despotic. While shutting down their resettlement, the US government will create "safe zones" in Syria and in neighboring countries. Look at the terms used in the EO: firm settlement and third-country resettlement. These are legal terms in asylum law, and if a foreign national is firmly settled or resettled, they are statutorily barred from asylum in the US. The US will create these so-called "safe zones" and arbitrarily label them as zones in which people are firmly settled. A Syrian who goes there (and may not have any choice) would then be ineligible to seek asylum in the United States.
- The Order directs consideration, but stops short of mandating, the rescission of exemptions to the terrorism-related inadmissibility grounds (TRIG) under INA 212(d)(3)(B). Obviously, terrorism and material support of it are grounds of inadmissibility to the US. But overly strict application of these grounds led to absurd results, such as women who were forced to cook and clean for terrorist warlords being denied asylum on grounds they "materially supported" terrorism. So over the years, Congress allowed DHS to create situational and group-based exemptions. The new EO recommends rolling back to the overly strict application of TRIG.
- Complete the US-VISIT biometric entry-exit tracking system first recommended by the 9/11 Commission.
- All applicants under the Visa Waiver Program must be interviewed. This is a clear nod to the attacks in Paris and Brussels, where EU citizens of Middle Eastern descent (who would have qualified for visa-free entry into the US under the Visa Waiver Program) engaged in horrific acts of terror.
- Propaganda: Every 6 months, names of individuals convicted or charged with terrorism-related offenses, or those deported from the US, radicalized and thereafter engaged in terrorism-related acts (not necessarily formal crimes), plus information breaking down violence against women and so-called honor killings in the US will be published. This will create enormous pressure to charge and convict under terrorism-related criminal statutes, and may also lead to the enactment of more such statutes. It creates a governmental stage on which the state-sanctioned narrative of the dangerous Muslim immigrant can play.
The order's salient points:
- This is a statement of the policy of the executive branch under Trump. Presumably, all actions taken by the Trump administration will be in line with the framework, assumptions, and thrust of this Order.
- The policy sees "many" out of status aliens as a significant threat, with those who have committed crimes to be a greater threat. The policy does not explicitly state that an out-of-status alien could pose no threat, nor does it recognize any contributions of an out-of-status alien.
- The policy sees unilateral detention and deportation as the sole means of enforcement of federal immigration law, and seeks to reduce or eliminate the right to contest such enforcement.
- The policy sees so-called sanctuary cities as wilful violators of federal law, when in fact sanctuary cities merely refuse to assist federal immigration authorities perform their enforcement obligations.
- Although prior administrations reached record-high numbers of deportations and engaged in noxious practices such as detention of refugee women and children, the Trump administration finds that the federal government has failed to discharge its duties of enforcement.
- Enforcement necessarily includes mandatory use of all available means to detect and remove aliens, without regard to the consequences, such as resource drain on state and local law enforcement, loss of federal funding, engendering mistrust between community and police, due process and other constitutional concerns, or deleterious effects on public safety.
- In contrast to prior schemes of prioritization of removal, the new policy is, essentially, to not prioritize. This means everyone is at risk, not just those with serious criminal records. The policy defines as a priority for removal anyone not only convicted of a crime, but anyone charged with a crime, or committed acts which would constitute a crime (whether proven or not), who have a final order of removal (whether such order was lawfully obtained, and without regard to the passage of time), and a catch-all: anyone whom the immigration officer believes poses a risk to public safety or national security. When all out-of-status aliens are seen as a threat to some degree, the catch-all provision on paper (and certainly in practice) provide justification for apprehension and removal of anyone the officer comes across.
- Within one year, aliens and those who faciliate their unlawful presence may be subjected to civil fines and penalties. There is no indication that a lawyer representing an undocumented personn may not be subjected to such fines, nor an employer who unknowingly hires one, or indeed, anyone who helps an undocumented person in any way.
- Up to 10,000 additional deportation officers will be hired.
- Resurrect the failed 287(g) program, which deputized local law enforcement to begin the deportation process when they come across a person they superficially determine to be in the US without documentation. Also resurrect the failed Secure Communities program, which also set up ill-conceived federal-state partnerships on immigration enforcement, which is a solely federal task.
- Propaganda: Where a detainer is not honored, criminal actions performed by such aliens shall be made public weekly. Data on aliens serving time shall be published quarterly.
- All diplomacy with foreign nations shall include a condition precedent that the country swiftly accept its nationals who are removed from the United States.
- Aliens who are not green card holders are unable to benefit from the Privacy Act. This means all their personal identifying information can be shared and disclosed.