Executive Dis-order: Obama, Trump & Stalled Immigration Policy

President Trump is justifying his own abuse of power by “delaying” the law in order to push his own agenda. Sound familiar? Remember the outrage Republicans felt when President Obama ignored the Constitution by issuing executive orders to bypass Congress on immigration? I hate to break it to you, but what Trump is doing now is the exact same thing.

During his first week in office, President Donald Trump issued 6 executive orders in an effort to carry out promises he made on the campaign trail. Last Thursday, he issued a particularly controversial immigration order that has thrown the country into bitter chaos. His “Protecting the Nation From Foreign Terrorist Entry into the United States” initiative effectively bans citizens of seven countries deemed hostile to the United States from the country for 90 days (Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia) while suspending the admission of all refugees for 120 days. On Friday, President Trump took another step further and pledged to prioritize Christian refugees during an interview with Christian Broadcasting Network.

“If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair — everybody was persecuted, in all fairness — but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.” -President Donald Trump (January 27, 2017)

Now Trump is being accused of abusing executive power in order to promote a “xenophobic agenda”. According to the Immigration and Nationality Act of 1965, it is illegal to discriminate against immigrants based upon “nationality, place of birth, or place of residence”.

While I disagree with the decision itself, I want to draw attention to the stark hypocrisy coming from critics on the left. After all… Trump’s immigration directive has legal precedent all thanks to executive orders that President Obama issued on immigration between 2012-2014. Throughout his two terms as president, Obama issued 275 executive orders (and 710 executive directives). For comparison’s sake, know that Franklin D. Roosevelt issued 3,522 EOs during his presidency. And executive orders are nothing new, considering that George Washington started the trend back in 1789. While the Constitution does not explicitly include provisions allowing executive orders, their origin is found in the “Take Care” clause of Article II. And any executive order MUST have a basis in the constitution.

It was by executive order that slaves were emancipated, the U.S. armed forces were integrated, schools were desegregated, and Roosevelt launched his “New Deal”. It was also by executive order that Japanese-Americans were sent to internment camps during WWII, native Americans were forced from their ancestral homelands and onto reservations, and 16 Puerto Rican terrorists were pardoned.

During his first term, one of Obama’s senior aides expressing the administration’s conscious intent to act outside the balance of powers, going on record saying, “when Congress won’t act, this president will.” But let’s focus on Obama’s executive actions pertaining to immigration. Remember the “Deferred Act on Childhood Arrivals” (DACA) and the “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) initiatives? Republicans were outraged. In 2012, President Obama ordered that any illegal immigrant who entered the country before their 16th birthday were eligible for a work permit and a two-year (renewable) deferral from deportation. In 2014, he used his previous immigration orders to justify even more.

President Obama pushed his agenda even further using additional executive orders to delaying the deportation of the estimated 5 million illegal immigrants with children who are either citizens or legal residents by extending three year, renewable work permits. Again, Republicans were outraged. But this outrage was nothing new, given that Obama routinely used executive orders to bypass Congressional approval and promote his own agenda (i.e. Cap-and-Trade, Net Neutrality, Bay State Bailout, ACA employee mandate delays, etc.). After a federal judge ruled against Obama’s immigration effort, a split vote in the Supreme Court prevented them from ruling on its constitutionality either way, leaving the question of its legality in uncertainty.

But President Obama clearly acted outside his constitutional powers in order to implement specific exceptions to U.S. immigration law on a temporary, but renewable, basis of two or three years (KEYWORD: renewable). Obama’s executive order unfairly applied to immigrants from central America. Critiques argued that it provides for bias treatment to illegal immigrants who broke immigration law over would-be immigrants seeking come to our country the legal route. Supporters expressed concern over the security of families with family members facing deportation.

Now President Trump is enacting specific exemptions to U.S. immigration law on a temporary basis of 90 days. Trump’s executive order unfairly applies to immigrants from countries hostile to America (Remember, the 120 day refugee ban applies across the board). Critics argue that it provides for the bias treatment of immigrants from Arab nations. Supporters have expressed concern over the security of American families from the threat of terrorist infiltration through nonsecure immigration channels.

Now, if you were paying attention during President Obama’s final days in office, you would have noticed that he issued yet another executive order on immigration, only this one contradicted his prior immigration policies. While Obama’s previous immigration orders centered upon an unequal application of immigration laws, his final order on immigration revolved around a desire to apply U.S. immigration law equally.

“Effective immediately, Cuban nationals who attempt to enter the United States illegally and do not qualify for humanitarian relief will be subject to removal, consistent with U.S. law and enforcement priorities. By taking this step, we are treating Cuban migrants the same way we treat migrants from other countries.” -President Obama (January 12, 2017)

But wait… didn’t President Obama repeatedly double-down on his own efforts to treat some migrants differently than others by failing to enforce immigration law? While this lame duck shift policy is certainly baffling, I suspect this action was less of a policy shift and more of a thinly veiled, middle finger effort to undermine and complicate the incoming administration’s immigration agenda. But I digress…

So here’s my two cents…

  1. No President has the constitutional authority to tip the balance of powers, supersede Congress, and impose their own immigration policies. Obama acted well beyond his constitutional powers and now Trump is doing the same. The actions of both Presidents explicitly create an unequal application of the law, which is discriminatory and unconstitutional. Both violated the Immigration and Nationality Act.
  2. Banning immigrants from “hostile countries” will not effectively deter terrorist activity. I don’t believe hat the the ends will justify the means here. If Trump wants to block extremists from Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia, then he needs to block all immigration from the EU as well. The EU’s open borders policy allows europeans to travel freely between most EU states, which means that by gaining access to one EU country with lax border control, they can gain access to them all. Not to mention that the government in Bulgaria has been known to basically give passports away…
  3. Implementing a temporary ban on immigration and refugees overnight, without any warning or considering how it would effect individuals currently traveling, is just as irresponsible as passing 828 pages of health care legislation into law without reading it.
  4. In 2016, Republicans used the threat of Clinton’s would-be nominees for SCOTUS as a major talking point throughout the campaign, vehemently opposing a politicized Supreme Court that would disregard the Constitution and the separation of powers. Now those very same Republicans ought to be concerned that President Trump may base his SCOTUS nominations on how candidates are likely to rule on the constitutionality of his executive orders.
  5. And to the individuals who once opposed Trump’s calls for a “Muslim ban”, but have now seemingly lost their tongue… your silence will not be forgotten. For more on these flip-floppers, click here.