Why Trump’s Restrictive Entry Policy is the Right Idea…for Right Now

The Supreme Court decided in June to uphold President Trump’s “travel ban” to the great relief and utter dismay of our divided nation. Upon closer inspection and careful review of the actual Proclamation and 92-page opinion – not broad interpretations by politically polarized articles – we cannot help but wonder with what, exactly, do dissenters disagree? The Presidential directive is neutral at face and carefully crafted in the best interest of all current citizens, regardless of party affiliation, who value national security and public safety. Trump’s Proclamation scarcely functions as a travel ban and may be better dubbed an “entry policy” appropriately revised and restricted to afford everyone living within U.S. borders some peace of mind.

Back in September 2017, President Trump issued Proclamation No. 9645 placing restrictions on immigrants from eight foreign states – including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen – who, after extensive analysis by the Department of Homeland Security (DHS) in consultation with the State Department and intelligence agencies, determinedly lacked the measures or means necessary to identify their nationals and thus differentiate emigrants seeking a better life from terrorists seeking death and destruction of founding American principles.

In Trump v. Hawaii, the Supreme Court heard Plaintiffs – the State of Hawaii, including three foreign relatives affected by the entry suspension and the Muslim Association of Hawaii – argue that Trump’s Proclamation violates the Immigration and Nationality Act (INA) and the Establishment Clause. After extensive review of federal and constitutional law, the Court ruled that the President had lawfully exercised the broad discretion granted to him under 8 U.S.C. 1182(f) to suspend the entry of aliens into the United States, which “exudes deference to the President in every clause” and “entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” The President need only find that the entry of aliens “would be detrimental to the interests of the United States” to meet the sole perquisite set forth in 8 U.S.C. 1182(f). Surely the “failure of certain high-risk countries to provide a minimum baseline of reliable information” gives a President ample reason to take corrective action.

Plaintiffs alleged that the Proclamation’s primary purpose was religious animus and that the President’s stated concerns about vetting protocols were but pretexts for discriminating against Muslims. Conveniently, Trump explains the purpose of his controversial Proclamation within the document itself:

            “In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”

How can a proclamation issued to prevent persecution and oppression of Americans of any terrorist-targeted race, gender, religion, or sexual orientation violate the First Amendment?  If the President harbors inner prejudice or religious animus, it is hardly evident here. Paradoxically, if the Supreme Court were to base its ruling not on the text of the Proclamation itself but on a few anti-Muslim comments made by Trump on the presidential campaign trail, then that would hardly uphold candidates’ First Amendment rights to freedom of speech.

The Court further observed that the entry restrictions placed upon Muslim-majority nations are limited to countries “previously designated by Congress or prior administrations as posing national security risks.” Trump’s 12-page Proclamation “thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions” in a fashion more detailed than similar orders issued by predecessors under the same provision. Trump did not pen his Proclamation in a geopolitical or moral vacuum. Presidents Clinton, Reagan, and Obama each suspended entry of individuals based on nationality and security risk. Indeed, Trump has followed precedents set by prior Republican and Democratic administrations alike.

Should any question remain regarding the legitimacy of a national security interest, the Court identified three more features of Trump’s entry policy supporting his claim. First, three Muslim-majority countries – Iraq, Sudan, and Chad – have since been removed from the initial list after significantly improving their identity management and information sharing. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Third, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. The Court ruled that under these circumstances, President Trump has set forth a sufficient national security justification to survive rational basis review.

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