RUTHFULLY YOURS

On Friday, President Donald Trump issued an executive order calling for heightened vetting of certain foreign nationals seeking entry into the United States. The order temporarily suspends entry by the nationals of seven Muslim-majority countries: Syria, Iraq, Iran, Sudan, Libya, Somalia, and Yemen. It is to last for 90 days, while heightened vetting procedures are developed.

The order has predictably prompted intense protest from critics of immigration restrictions (most of whom are also critics of Trump). At the New York Times, the Cato Institute’s David J. Bier claims the temporary suspension is illegal because, in his view, it flouts the Immigration and Nationality Act of 1965. This contention is meritless, both constitutionally and as a matter of statutory law.

Let’s start with the Constitution, which vests all executive power in the president. Under the Constitution, as Thomas Jefferson wrote shortly after its adoption, “the transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specifically submitted to the Senate. Exceptions are to be construed strictly.”

The rare exceptions Jefferson had in mind, obviously, were such matters as the approval of treaties, which Article II expressly vests in the Senate. There are also other textual bases for a congressional role in foreign affairs, such as Congress’s power over international commerce, to declare war, and to establish the qualifications for the naturalization of citizens. That said, when Congress legislates in this realm, it must do so mindful of what the Supreme Court, in United States v. Curtiss-Wright (1936), famously described as “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress.”

In the international arena, then, if there is arguable conflict between a presidential policy and a congressional statute, the president’s policy will take precedence in the absence of some clear constitutional commitment of the subject matter to legislative resolution. And quite apart from the president’s presumptive supremacy in foreign affairs, we must also adhere to a settled doctrine of constitutional law: Where it is possible, congressional statutes should be construed in a manner that avoids constitutional conflicts.

With that as background, let’s consider the claimed conflict between the president’s executive order and Congress’s statute. Mr. Bier asserts that Trump may not suspend the issuance of visas to nationals of specific countries because the 1965 immigration act “banned all discrimination against immigrants on the basis of national origin.” And, indeed, a section of that act, now codified in Section 1152(a) of Title 8, U.S. Code, states that (with exceptions not here relevant) “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence” (emphasis added).

Even on its face, this provision is not as clearly in conflict with Trump’s executive order as Bier suggests. As he correctly points out, the purpose of the anti-discrimination provision (signed by President Lyndon Johnson in 1965) was to end the racially and ethnically discriminatory “national origins” immigration practice that was skewed in favor of Western Europe. Trump’s executive order, to the contrary, is in no way an effort to affect the racial or ethnic composition of the nation or its incoming immigrants. The directive is an effort to protect national security from a terrorist threat, which, as we shall see, Congress itself has found to have roots in specified Muslim-majority countries.

Yesterday, in explaining the lawfulness of President Trump’s executive order dealing with the entry of aliens into the United States, I opined that the question of legal authority was separate from that of policy wisdom. Whether something is good policy depends not only on whether its objectives are worthy but also on whether its implementation is sound. Poor implementation can undermine good policy objectives and create unforeseen, unnecessary legal problems.

There are three major implementation problems with the EO.

1. Lack of Notice

The overarching problem is that the Trump administration opted for immediate implementation rather than giving travelers a brief notice period (say, a week or even a few days), so that people who had done nothing wrong were sandbagged. Through no fault of their own, they were detained or denied entry and put on a plane back to the country from which they had come. This seems inexplicably unfair (and, as I’ll address in a bit, strategically foolish).

Even if you accept, as I do, that the inadequate vetting of aliens who come to our country is a serious security problem, surely the imposition of temporary restrictions (in anticipation of more refined restrictions to come) could have waited a few days. President Trump has been issuing orders since a few hours after he was sworn in; if the threat situation is such that he could afford to wait a week to issue this EO, then there’s no reason he couldn’t have waited another week to give government agencies time to prepare, and foreign travelers a chance to alter their plans.

2. Application to Lawful Permanent Resident Aliens

The second and most serious question, as David French, Dan McLaughlin, and Charlie Cooke have all discussed, is the application of the EO to green-card holders — i.e., lawful permanent resident aliens (LPRs). I agree that the EO should either have excluded them altogether or proposed a different procedure for them in the interim before the administration announced a more refined vetting plan. And, indeed, White House chief of staff Reince Priebus intimated in a Meet the Press appearance Sunday morning that the EO’s application to LPRs is being eased, if not rescinded.

Unlike some of my colleagues, I do not think there is any doubt that the order literally applies to LPRs. It states in pertinent part (italics are mine):

[P]ursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order[.]

LPRs are aliens who have immigrated to the U.S. — i.e., permanent settlers. When they travel internationally (as they are liberally permitted to do while maintaining their LPR status) and then return to the U.S., they seek an “immigrant entry” (as opposed to a “nonimmigrant entry,” which generally involves alien visitors whose presence is lawful but who do not seek to settle in the United States). The terms of the EO clearly make it applicable to entry by any immigrant alien. Consequently, it applies to LPRs who have traveled from the seven countries implicated by the suspension order.

On Friday, Donald Trump signed an executive order halting admission of refugees for 120 days and halting travel from seven majority-Muslim countries — Iraq, Iran, Syria, Yemen, Sudan, Libya, and Somalia — for 90 days while the federal government undertakes a review of admission procedures. He has also imposed an annual cap of 50,000 refugees. The instant backlash, which has culminated in thousands of protesters creating chaos at the nation’s airports, is the result more of knee-jerk emotion than a sober assessment of Trump’s policy.

It’s a well-documented fact that would-be terrorists are posing as refugees to obtain admission into Europe, and visa screenings have routinely failed to identify foreign nationals who later committed terrorist attacks in the United States. As the Islamic State continues its reign of terror across a large swath of the Middle East, it should be a matter of common sense that the U.S. needs to evaluate and strengthen its vetting.

Trump’s executive order is an attempt — albeit, an ill-conceived attempt in several ways, about which more momentarily — to address this problem. Rhetoric about “open arms” aside, the United States. has been modest in its approach to refugees for the past two decades. During the George W. Bush administration, the U.S. regularly admitted fewer than 50,000 refugees. Barack Obama’s tenure was little different — he increased the refugee cap to 70,000 at the beginning of his second term but normally admitted numbers on par with Bush’s — until he dramatically expanded the cap (to 110,000) for 2017. Trump’s order is, to this extent, a return to recent norms.

Similar myths have dominated the public understanding of the Syrian-refugee program. Until ratcheting up the program in 2016, the Obama administration admitted fewer than 2,000 Syrian refugees between 2011 and 2015 — this at the time that the former president was dithering over his “red line.” The 13,000 Syrian refugees admitted during 2016, pursuant to President Obama’s expansion, still constitute an infinitesimal fraction of the refugee population, which is in the several millions, of that war-torn country. Trump has suspended that program temporarily, pending review.

When that program comes back on-line, it will include a directive to prioritize Christians, Yazidis, and other persecuted religious minorities — against which the Obama administration effectively discriminated at the same time that it was declaring Christians to be victims of “genocide” at the hands of ISIS. Given the unique threats these groups face, moving them to the front of the line should be an obvious measure, and contrary to outraged claims otherwise, prioritizing religious minorities is in accordance with law; religion is already used as a criterion for evaluating refugee-status claims.

Finally, there is recent precedent for Trump’s order. In 2011, the Obama administration halted refugee-processing from Iraq for six months in order to do exactly what the Trump administration is doing now: ensure that terrorists were not exploiting the program to enter the country. No one rushed to JFK International to protest. Also, the seven countries to which the order applies are taken from Obama-era precedents.

A day after President Trump’s executive order suspending immigration from terrorism-producing countries was signed, an Obama-appointed judge on Saturday night followed the advice of George Soros-funded groups seeking to blunt it.

It is yet another searing reminder that the Left doesn’t believe in American democracy. To the Left, elections only have consequences when their side wins. And when they lose, mobocracy, intimidation, and street violence take over. The chant “this is what democracy looks like” is the hallmark of left-wing authoritarianism.

These leftist temper tantrums are becoming a regular thing in the week-and-a-half-old Trump era. When President Trump honors a campaign promise he made to the American people, on cue the Left explodes in a fireball of anger and hatred, much of it underwritten by radical billionaire George Soros.

The Hungarian-born billionaire two dozen times over is a radical open-borders advocate committed to dissolving national boundaries. He has said Communist China’s system of government is superior to our own and that the United States is the number one obstacle to world peace. In the U.S. he has financed the violent, politically destabilizing Occupy Wall Street and Black Lives Matter movements. He also funds many of the groups that participated in the various anti-Trump women’s marches across America on Jan. 21.

Before the narrowly drawn restraining order was issued Saturday evening, near-riots broke out as leftist freak shows descended on airports across America. Demonstrators were horrified that some individuals were actually being detained at ports-of-entry as required by the president’s 100 percent legal and constitutional executive order. The left-wing hissy-fit consisted of radicals trespassing and endangering airport security by staging disruptive in-your-face protests at airports around the country.

Those who hate America have increasingly been expressing themselves politically at the nation’s airports. On Jan. 6 suspected jihadist Esteban Santiago gunned down innocent people at the baggage check at Fort Lauderdale, Fla.