Yes, Trump's (and Obama's) ban on some immigrants is illegal

President Donald Trump’s announced ban on Syrian refugees, and travelers from seven Middle Eastern countries as a whole, is illegal. This won’t be particularly popular here at Hot Air (hey, at least I admit it), but the 1965 Immigration Act is pretty clear on the rules.

(a) Per country level
(1) Nondiscrimination
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

This means every president who has enacted temporary immigration bans has been violating U.S. law (this means you, former President Barack Obama). Congress should have stepped in and punished the president for overstepping their authority. It’s not surprising to see America freak out about refugees, it’s something they’ve done on a regular basis, dating back to the 1800’s and the Chinese Exclusion Act. Reason’s Jesse Walker wrote in 2015 how fearful Americans (on both sides of the aisle) have been about people coming in from dangerous places.

In the late 1930s and early ’40s, Americans saw Nazi agents everywhere. In August of 1940—more than a year before Pearl Harbor—Gallup’s pollsters knocked on people’s doors and asked, “Without mentioning any names, do you think there are fifth columnists in this community?” Forty-eight percent said yes, some of their neighbors were probably secret agents; just 26 percent said no. Those suspicions often extended to the refugee population. The Saturday Evening Post told its readers that Nazis “disguised as refugees” were working around the world as “spies, fifth columnists, propagandists or secret commercial agents.” Similar stories appeared in such organs as Reader’s Digest and American Magazine, with the latter running a feature that bore the calm, collected headline “Hitler’s Slave Spies in America.”

The idea in that piece was that the agents among the refugees didn’t want to do Hitler’s bidding. They simply had no choice, because otherwise their relatives back home would be in danger—an approach the article called a “blitzkreig of blackmail.” This theory was endorsed by no less than President Franklin Roosevelt, who said at a press conference that refugees (“especially Jewish refugees”) could be pressed into Nazi service with the words “we are frightfully sorry, but your old father and mother will be taken out and shot.”

The question is still whether or not these fears are warranted. Former Niskanen Center’s Immigration Policy Director David Bier said in 2015 the fear in the 1930’s and 40’s was completely overblown and led to people dying.

In 1939, German Jews frantically applied for U.S. visas. Because the U.S. issued so few, some Jewish refugees headed to Cuba to wait for their visas to become available. This, however, took a tragic turn in 1940 when the St. Louis, full of Jewish refugees, was denied entry to Cuba. The desperate pleas passengers sent to the U.S. State Department were denied. Forced to return to Europe, 532 passengers suffered through the Holocaust—and half were killed.

The fear now is also suspect. Even the claims ISIS was able to slip terrorists into Europe as refugees appear to either be fake, or overblown. The claim the December 2016 terrorist attack in Germany was done by a refugee turned out to be false, and was actually perpetrated by a Tunisian who fled his home country. Parisian authorities believe the terrorist who attacked Bataclan had a fake Syrian passport. The Boston bombers weren’t refugees, nor were their parents. Two refugees were arrested in Kentucky on terrorism charges, but that appears to be the exception, not the norm.

It should also be pointed out accepting refugees may actually keep them from becoming radicalized. Obviously, nothing is certain, not in the Internet age, but Reason’s Veronique de Rugy wrote in 2016 turning away refugees can lead to more terrorists.

Meanwhile, countries that refuse entrance to refugees—forcing them to reside in terrible living conditions in camps near the theater of conflict—may inadvertently be facilitating recruitment by extremist groups. A 2013 study in International Interactions shows that when large numbers of refugees are placed in countries that have historically had tensions with their country of origin, it increases the risk of terrorism. Georgetown University’s Ann Speckhard, who studies terrorist psychology, says: “Experience from many conflict zones teaches us that the longer these refugees are left to languish in despair in camps, the more prone they become to radicalization.” In other words, there are serious security downsides to not accepting refugees.

Resettlement in the United States is only the first step in the process, of course; assimilation is also important. Thankfully, past efforts on this front have met with positive results. “Refugees adapt quickly to the U.S. economy, complement existing workers, and settle rapidly into their new homes,” argues Alex Nowrasteh, an immigration specialist at the Cato Institute.

This makes a lot of sense. Think about it. If you receive bad service at a restaurant or business, are you likely to return there? Probably not. Will you have a resentment towards the place? Probably. It doesn’t mean you’ll eventually start plotting to physically destroy the place and kill innocents, but there are consequences to actions. Not allowing refugees into the U.S. could foment more terrorists, instead of stamping them out.

It’s also questionable if the U.S. government can limit people from coming into the country. Judge Andrew Napolitano says no, because it’s not even in the Constitution. Via Reason (emphasis mine).

But the Constitution itself—from which all federal powers derive—does not delegate to the federal government power over immigration, only over naturalization. Thus, when the government’s motivation for enacting immigration laws is to further genuine compelling foreign policy goals, the laws will be upheld. But when the government’s motivation is nativism or fear or hatred or favoritism, strict scrutiny will operate to defeat those laws…

The Fourteenth Amendment requires this, and its language is inclusive: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States…” Though written to protect former slaves, its language is not limited to them.

This is why the actions done by Presidents Obama and Trump are wrong. Jazz is correct in arguing it’s going to take a while for the courts to sort this out. But if the federal government decided to follow the Constitution in the first place, we wouldn’t be having this argument (or an argument on a lot of things re: guns).

Trump’s (and Obama’s) executive orders may seem the best way to prevent terrorists from getting into the U.S. but the fact is, the orders probably hurt more than helped.