Welcome to another edition of “What’s the Deal” the blog that is seeing the highest readership of any blog ever! 
In this week’s post we’ll discuss President Donald Trump*’s latest executive order halting immigration from 7 different countries that are predominantly Muslim. The public criticism and protest of the order has been widespread and large as many people feel that the order is the first step on the way to Trump’s promised “Muslim Registry” from the campaign trail.
Following the public backlash, the White House issued a press release on the executive order intending to clarify and justify the action. Trump cited a previous halting of immigrants by President Obama as legitimate reasoning for the action which is intended to “protect the nation from foreign terrorist entry.”
Since it has been issued, a lower federal court and a ninth circuit federal appeals court have prevented the order from being enforced by the Executive Branch, so at the moment, the order is blocked by the Judicial system though Mr. Trump has promised to fight the block all the way to the Supreme Court.
There have been many well-written briefs on the legal grounds, strategic folly, incoherence, and poor implementation. This blog will focus instead on the historical precedents on executive orders in the realm of immigration.
*yes, he actually is the President of the United States – kind of like when Doc Brown won’t believe Marty when he tells him that in 1985 Ronald Reagan is President of the U.S. – except much worse.
Historical Presidential Actions on Limiting Immigration
Unfortunately for Mr. Trump, his justification based on Obama’s order – “my policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months” – does not hold up to scrutiny. First off, refugees do not travel on visas and secondly, the executive order from 2011 from President Obama was not a complete ban – it was a narrow more intense vetting of refugees and those applying for Special Immigrant Visas (SIVs). In addition, the Obama order was grounded in a specific threat from intelligence information that included the arrest of two Iraqi refugees in Kentucky and was an organized process that involved the intelligence and defense departments – not a direct order from an inexperienced White House staff.
This is not very “similar” to what the Trump order implements which is a near-total ban on immigrants with the exception of diplomats.
Have other presidents taken a similar draconian approach to banning immigration from certain countries or regions?
The answer, in the long and often exclusionary history of the United States is yes, with both the Executive Branch and Congress playing a role in excluding and enforcing draconian immigration laws and quotas. Instead of listing every single law or order that was put forth, we’ll highlight a few that exemplify the ban on certain immigrants – something that resonates with Trump’s executive order which suggests a ban on Muslims given his rhetoric and the countries involved but that does not explicitly say religion.
Exclusion – An American Tradition in Congress
The exclusion of certain immigrants by laws passed by Congress and signed by the President in the U.S. is well known, from the Alien and Seditions Acts of 1798 passed during President John Adam’s administration (which restricted migrants to the U.S. based on political beliefs) to the Chinese Exclusion Act of 1880 which excluded all Chinese laborers from entering the U.S. for longer than 90 days, to the Immigration Act of 1917 and 1924 which more broadly restricted migrants from the “Asiatic Barred Zone”* to the introduction of literacy tests and immigration quotas to limit the total number of immigrants.
The quotas were based on current U.S. population, which meant that the quotas favored allowing more migrants from the British Isles and Northern Europe than Southern and Eastern Europeans. Interestingly, Congress has also sought to prevent immigration based on religion, though of course not explicitly. A good example of this is the Wagner – Rogers Act of 1939 which sought to admit 20,000 Jewish children from Germany. Congress prevented its passage but then passed a bill admitting British children endangered by German attacks. Congress has also passed bills allowing immigrants that were in the national interest – such as scientists and professors.
Finally, the case of the U.S. and Philippines (examined here) by the Tydings-McDuffie Act changed the status of Filipinos from official U.S. citizens to aliens and created a quota of 50 Filipino immigrants admitted / year.
Exclusion has less commonly been a tradition from the pen of the White House and the Executive Order (although Presidents have signed draconian immigration laws). A 1952 law that overrode President Truman’s veto gave the President power to block immigrants or prevent full citizenship to whose political beliefs were “detrimental to the U.S.” – clearly a measure directed at Communists or Fascists. From the 1980 Refugee Act, the President gained powers to control numbers of refugees admitted to the U.S. but the Executive Branch has more commonly focused on increasing the inclusion of immigrants such as when President Lyndon Johnson signed the 1965 Immigration Act which banned discrimination of immigration based on sex, religion, nationality, race, and background.
Any quotas set by the President since the 1980 Refugee Act have been made in consultation with Congress – except for Mr. Trumps. The one area where the Executive Branch has been top in line in preventing or restricting migrants has been since 9/11 when the responsibility of immigration moved to the Department of Homeland Security. The huge increase in intelligence from the “war on terror” along with the Patriot Act gave the Executive Branch and newly swollen intelligence agencies new powers that disproportionately affected Arabs, South Asians, and Muslims.
*Interestingly this included barring migrants and refugees from Syria (which the current executive order includes as under the ban)
Conclusion: A Dangerous Precedent, Mr. President
Mr. Trump’s order is new in its sweeping effect (only diplomats excluded from the 7 country ban) and in its lack of accountability and participation from the Legislative Branch. The claims made by the President in the order such as the pressing need for national defense against terrorism, the similarity to President Obama’s executive order, and the exclusion of immigrants from specific countries do not hold up to scrutiny, or even some basic reading. On the count of the last point (exclusion from specific country), the order breaches the law (1965 Immigration Act – which prevents discrimination of immigrants based on national origin). Given Mr. Trump’s statement during the campaign and after winning about instituting a “Muslim Ban” this executive order comes close to doing this (which would violate the Constitution) – but does so without explicitly saying it.
The order, though currently blocked, is a dangerous step for the Trump Administration because it likely is counterproductive in reducing terrorist acts, prevents many qualified professionals such as scientists from Iran or professors from Sudan from entering the country – not to mention the splitting of families with dual citizenship and in general putting America under a very negative lens from the international community.
Until the next controversial executive order,*
Your Faithful Historian,
Eric G. Prileson
*won’t be long
Sources and Further Reads: