Past presidents set the precedent for Trump's immigration ban

When Donald Trump signed the executive order on Friday banning individuals from seven predominantly Muslim countries from entering the U.S., he was not the first president to use his authority to reject immigrants, but the scope of his action went beyond what previous administrations have done.

Under the authority granted to the president in the Immigration and Nationality Act, the past six presidents have issued executive orders banning certain categories of immigrants from entering the country for a period of time. In a Sunday statement, released amid a flurry of national protest, Trump reminded his critics that his policy is "similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months."

The main differences cited by Trump's critics is the scope of the immigration ban, covering most categories of travelers from seven countries, and the possibility that the order is the beginning of a Muslim ban.

According to William Stock, president of the American Immigration Lawyers Association said Trump's act "is completely unprecedented."

Under the order, immigrants and individuals traveling from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen on most types of visas will be blocked from entering the United States for the next 90 days. During that pause, the Trump's administration will review the screening measures used by the Department of Homeland Security and State Department to ensure the vetting procedures can "prevent infiltration by foreign terrorists or criminals."

In addition, the order suspends refugee resettlement for the next 120 days and indefinitely halts the resettlement of Syrian refugees, on the grounds that their entry is "detrimental to the interests of the United States." After the four-month suspension, Trump says his administration will "prioritize" refugee claims by individuals who represent a "minority religion" in their country of origin, in other words, not Muslims.

The Immigration and Nationality Act clearly gives the president the authority to use his discretion to restrict or "suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants." President Obama used that authority 2011 when issued controversial orders to temporarily suspended Iraqi refugees and certain visa applicants from getting into the country. But that was hardly the only time he invoked the authority.

According to a January report by the Congressional Research Service, Obama invoked his immigration authority on 19 occasions. President George W. Bush invoked it six times. Bill Clinton used it 12 times. George H.W. Bush used it once, and Ronald Reagan used it five times.

Looking at how previous presidents used the law, Stock noted that the scope of Trump's act goes beyond previous exercises of executive power. Previous administrations used the authority in a "very targeted" way, primarily to ban human rights violators, individuals subject to UN travel bans and U.S. sanctions, war criminals, and individuals who directly engaged in hostilities against the United States or its allies.

"To use this authority in peacetime when there's no basis in fact for this broad assertion that every temporary visitor is a danger to the United States and it is unprecedented," he said.

The act was also put in place without a specific national security threat, Stock explained. When Obama implemented his six month ban on Iraqi refugees, it was in response to two individuals living in Kentucky who had provided material support to terrorists. Trump's act was politically motivated.

On Monday, White House press secretary Sean Spicer defended the act, despite the lack of specific, credible threat, saying you “never know when the threat will come.”

Referring to reports that White House chief strategist Steve Bannon and advisor Steve Miller crafted the order, Stock said the ban"was written by a small group of folks inside Trump's circle ... to make a political statement."

"The idea here was not to come up with something from the experts in national security," he continued. "The idea was to come up with an order that made a big dramatic push to show that Trump is about restricting immigration."

Senior counsel at the American Freedom Law Center, David Yerushalmi argued emphatically that while some may disagree with the policy of the immigration ban, Trump is fully within his authority as president to issue the immigration ban.

"There is no question that the ban is legal," Yerushalmi said, citing provisions in the Immigration and Nationality Act. "I understand why lay-people take the position that it's illegal, because they are responding emotionally or from a policy perspective, what they would like it to be, but it is not illegal," he said.

Additionally, he described Trump's immigration ban "imminently reasonable" given the unprecedented number of threats facing the United States. "First, it's for a very limited time, second it's for a discreet number of countries that have literally crumbled," he said.

Because of the president's power over international relations under Article 2 of the Constitution, it will be difficult for a judge to rule against President Trump's seven-nation immigration ban.

Already, there are numerous civil liberties lawyers and lawmakers challenging Donald Trump's authority, legal challenges some previous administrations also faced in response to their own orders to suspend immigration.

In the hours following the executive order, judges in four federal courts in Alexandria, Virginia, New York, Boston, and Seattle challenged the executive order. Each judge was limited in their ruling and only able to mitigate the impact of the executive order on those individuals who were detained en route when the order was issued.

The American Civil Liberties Union (ACLU) won the case it brought in New York on Saturday night, but the victory only entailed a temporary injunction to block the deportation of those individuals already stranded in U.S. airports.

As a follow-up, the ACLU announced it will bring further suit against the Trump administration for plans to allow immigrants of a "minority religion" into the country after 120 days. They say the act violates the First Amendment's Establishment Clause, which prevents the U.S. government from establishing a religion and giving preference to one religion over another.

The Council on American Islamic Relations (CAIR) announced a similar lawsuit against the Trump administration on Monday, also for allegedly violating the Establishment Clause.

Stock indicated that the the Trump administration is heading towards a "collision" on fundamental issues of American constitutional law, particularly where is concerns religion.

"The federal government is not allowed to set the religion for America, and what we have here is an executive order that never uses the word religion, except to say people from a 'minority religion' might be excepted from the ban and might get priority," he explained.

The language of the act may have been carefully crafted by White House lawyers, but the implications and intent being read into Trump's action are far-reaching.

"We know that the president and his advisors originally came up with this idea as a Muslim ban," Stock said, noting that the religious exception is clearly directed towards Christian refugees. "So we have the federal government saying, 'Christianity is okay and Islam is not.' That is the establishment of a religion, which the First Amendment says the government can't do."

On Monday, the ranking Democrat on the Senate Judiciary Committee, Diane Feinstein of California will introduce two pieces of legislation in response to the Trump immigration ban. One bill would rescind the order, which the senator described as "blatantly discriminatory." The second bill would curb the president's immigration authority, subjecting any act to bar entire classes of immigrants to greater congressional scrutiny.

"Even if she could pass that legislation, and I don't think she could, it would be unconstitutional, and the Trump administration should ignore it and allow it to be challenged in court," Yerushalmi advised.

And even if the bill passed, it is doubtful that President Trump would sign it into law, as virtually no president has willingly conceded executive authority. "From a legal perspective it's just not a close call," Yerushalmi said.

Based on previous lawsuits challenging presidential immigration authority, it is unlikely that any of the challenges against Trump will hold up. In 1993, the Supreme Court heard a case against President Clinton's executive action that allowed U.S. officials to interdict Haitians fleeing their country's violent military coup, seeking refuge in the United States. Despite the opposition to Clinton, the Supreme Court ultimately ruled that the president was within his authority under the Immigration and Nationality Act, and even under international law.

The added element of protecting national security even further insulates the Trump administration. The White House press secretary spent Monday afternoon arguing that the action is intended to close the security gaps in the immigration system and ensure the proper vetting for individuals traveling to the United States.

“We’re going to put the safety of Americans first. We’re not going to wait until we get attacked and figure out how it’s going to happen again,” Spicer said. "That’s the key point in this: How do we keep ahead of threats.”

Until the new administration conducts its 90 day review, as the executive order requires, it is not clear what new measures may be put in place to heighten the level of vetting for foreign travelers or further restrict immigration.

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