The Corner

Two Further Thoughts on Trump’s Refugee Order

In response to The Conservatism of Lotr

On further examination, there are two points worth adding to my column earlier this evening on Trump’s order on refugees from Syria and six other predominantly Muslim nations (in addition to which you should read David French on separating the fact from the vast volume of hysteria and Andrew McCarthy on Trump’s legal authority). One is a point against the order, and one is a point in its favor.

First, I agree wholly with Charlie that, whatever you think of the merits of the order as applied to people seeking refugee status, it’s overbroad in applying to holders of green cards (an application that seems to me not obvious from the actual terms of the order, but it’s how it is being interpreted by DHS). I endorse his argument and won’t repeat it here except to note that the green card holders may well have a much stronger legal argument for challenging the order’s application to them. I would hope the Administration reconsiders that part of the order, and Congressional Republicans who agree with the order (or are afraid to challenge Trump across the board on it) should press the Administration to reverse course.

Second, I and others have criticized Trump’s selection of seven specific countries – and not others – as targets for the order. But on closer inspection, there’s a reason for that. Trump didn’t come up with that list – the Obama Administration did, pursuant to a delegation of authority in a law passed by Congress in 2015, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act:

At the initial signing of the restrictions, foreigners who would normally be deemed eligible for a visa waiver were denied if they had visited Iran, Syria, Sudan or Iraq in the past five years or held dual citizenship from one of those countries.

In February 2016, the Obama administration added Libya, Somali and Yemen to the list of countries one could not have visited — but allowed dual citizens of those countries who had not traveled there access to the Visa Waiver Program. Dual citizens of Syria, Sudan, Iraq and Iran are still ineligible, however.

So, in a nutshell, Obama restricted visa waivers for those seven Muslim-majority countries — Iran, Iraq, Syria, Sudan, Somalia, Libya and Yemen — and now, Trump is looking to bar immigration and visitors from the same list of countries. 

More here. Naturally, few of the people protesting Trump’s action thought Obama’s DHS was enacting anything resembling a “Muslim ban” at the time. And as Andy notes, the 2015 statutory provision and delegation of power to the executive is a key element of Trump’s legal authority to do this. In other words, none of this stuff came out of the blue.

And as always, if you don’t want presidents to have this kind of executive power, maybe encourage Congress to take a more active role in claiming the lawmaking power to itself.



Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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