Refugee and Immigration Executive Order is Unconstitutional and Antithetical to a Fair and Inclusive Society

Stephen Menendian

Assistant Director and Director of Research

Friday, February 3, 2017

On Friday, January 27, President Trump issued an extraordinary executive order with the header “protecting the nation from terrorist entry into the United States.” The scope and complexity of the order generated confusion among those charged with implementing it as well as the press and legal observers. In general, however, the order prohibits entry into the United States of both immigrants and lawful non-citizen residents (green card holders) from seven predominantly Muslim countries as well as suspends the US Refugee Admissions Program, of which Syrian refugees had been admitted under the previous administration. There are various exceptions provided, including a provision that would allow the Secretary of Homeland Security to prioritize refugee applications of religious minorities in the targeted countries.  

The Haas Institute is committed to promoting a fair and inclusive society. As we observed in a report issued late last year, one measure of a nation’s “degree of inclusiveness” is that nation’s immigration or asylum policies.  We explained that “[t]hese policies are reflective of the values and perspectives of the society vis-à-vis marginalized group[s], and how welcoming or tolerant the dominant group is of outgroups.” In particular, nativist and xenophobic strains of opinion are sometimes embodied in immigration and refugee policies. Noting our nation’s poor history of exclusionary immigration policy, from the Chinese Exclusion Acts to the Immigration and Naturalization Act of 1790, which restricted naturalization to “free white persons,” the United States has made tremendous progress in establishing non-discriminatory immigration and refugee policies.

Unfortunately, this new executive order is reminiscent of the United States’ legacy of racially and ethnically exclusionary immigration policies. Although facially neutral, the policy announced by President Trump both intentionally targets Muslims and through its natural operation. Statements made by President Trump during the Presidential campaign regarding his plans to implement such a policy, as well as statements by his surrogates, reveal a clear intent to target immigrants and refugees on the basis of religion.  The provision providing exception for “religious minorities” in predominantly Muslim countries reinforces this interpretation, by seeming to provide Christian minorities residing in those countries special treatment. Although the order does not apply to all predominantly Muslim countries, the context in which this policy arose and contemporaneous statements regarding it support the finding that the intent of the policy is to target a particular group on the basis of their religion. Moreover, the exception carved for religious minorities requires that all applicants are classified on the basis of their religion. This is fundamentally unconstitutional.

Although many of the lawsuits filed thus far challenging this executive order focus on the denial of due process, the denial of equal protection of laws more vividly illustrates the discriminatory purpose and operation of this order. The equal protection clause of the 14th Amendment to the United States Constitution guarantees all persons the “equal protection of laws.” Notably, this provision, unlike the Privileges and Immunities Clause of that same section, applies to all “persons,” not simply citizens. Therefore, individuals within the jurisdiction of the United States who are refused admissions to the United States under this order are being denied equal protection of laws in contravention of the United States Constitution. Nation-states have the authority to develop procedures and rules for whom they decide to admit into their borders, but treating members of a group differently because of their identity or beliefs is antithetical to our constitution and our values.  

The United States is a signatory to the Geneva Convention and Protocol Relating to the Status of Refugees, which establish the rights of refugees under international law. There is a critical distinction between immigrants, lawfully resident aliens (green card holders), and refugees. A refugee is a person who is unable or unwilling to return to her country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Last summer, more than two dozen Republican Governors expressed resistance to President Obama’s plan to accept tens of thousands of Syrian refugees as a consequence of a civil war that has an estimated 4.9 million refugees. Shutting the door to refugees fleeing conflict is not simply antithetical to our core values, but also anti-humanitarian.  

Following WWII, the US admitted 250,000 Europeans who had been displaced during the war. Congress then quickly passed legislation allowing for an additional 400,000 people. Americans witnessed immense suffering during the war and responded collectively by choosing to provide a safe haven to people whose lives were at risk because of their religious beliefs, ethnicity, or because they happened to live in the middle of a war zone. This legislation cemented the US’s commitment to providing protection to refugees. Since then, our country has played a vital leadership role in encouraging the international community to provide additional protections. This policy represents not only a step back from moral leadership, but a collapse of humanitarian decency.  

For an annotated breakdown of the executive order and a list of suits brought against it, please see our research memo.