President Donald Trump issued an executive order on 27 January, suspending refugee admissions and banning travel from Iran, Iraq, Syria, Libya, Somalia, Sudan and Yemen for 90 days, and suspending the Syrian refugee program indefinitely.
As a part of his response he has stated “Some things are law, and some things are common sense. This is common sense.”
He is being challenged through federal law and also through the constitution itself: thr US is a republic (not a democracy).
In a Republic, a constitution or charter of rights protects certain inalienable rights that cannot be taken away by the government, even if it has been elected by a majority of voters. In a pure democracy, the majority is not restrained in this way and can impose its will on the minority.
The President’s comments suggests that if a person (who happens to be President) finds a course of action to be obvious, then that should override due process of law. One interpretation of this statement is that opinion (a view or judgement formed about something which not necessarily based on fact or knowledge ) is a better way of making decisions than is the law itself. But whilst, sometimes, due process of law can seem a lumbering way to reach an obvious conclusion, another would be that a President calls the law an ass at all of our peril.
Has the President stated a wish to override or ignore due process of law in order to better implement courses of action informed by his own opinions?
Law sets boundaries with the intention of maintaining social order, upholding justice and preventing harm. It tries to lay a framework for what a society hopes it is and believes it should be. Its founding principles come from ethics rather than ideology, values rather than beliefs, consensus rather than autocracy. It protects people, politicians and the state from what they each agree are each other’s worst excesses. It has been developed through many years of open argument and debate.
What are the objections to the President’s action?
Challenges have been based on the Constitution, and on Federal Law. International Law may yet have a role to play:
The Constitution (First, Fifth and Fourteenth Amendments)
The law argues that by implicitly singling out those of Muslim faith, Mr Trump’s order amounts to an establishment of a state religion, in violation of the First Amendment. (“Congress shall make no law respecting an establishment of religion.”).
An exemption that the immigration order provides for religious minorities, suggests evidence of discriminatory intent. Moreover the President publicly stated, on the campaign trail, his wish to ban Muslims from the USA.
The Fifth and Fourteenth Amendment guarantee “due process of the law”. The President violates these by denying entry to individuals who have valid visas.
The law points out that in his order, Mr Trump quotes a 1952 immigration law that gives the president the ability to suspend entry “of all aliens or any class of aliens” into the US when he deems it “detrimental to the interests of the United States.”
however, a 1965 revision of the law, however, says individuals cannot be “discriminated against in the issuance of an immigrant visa” because of their “race, sex, nationality, place of birth or place of residence”.
Trump’s action rests on the presumption that presidential power supersedes congressional legislation in this case. he has implied this is because of threatened harm.
On this note, statistics regarding evidence of harm do not support the president’s view that citizens of the countries he has chosen to ban constitute a particular risk to the US: most terrorism cases in the US since 9/11 perpetrated by US born citizens. Moreover, the hijackers in the September 11 attacks were 19 men affiliated with al-Qaeda. Fifteen of the 19 were citizens of Saudi Arabia, and the others were from the United Arab Emirates (2), Egypt, and Lebanon. none of these countries are on Trump’s list.
The US Supreme Court has the power to strike down a law or presidential action as contrary to US obligations under international treaties.
The US has signed and ratified a number of international treaties that prohibit religious and race discrimination. This includes the Geneva refugee convention, which requires the international community to take in war refugees on humanitarian grounds.
The USA is also a signatory to the Universal Declaration of Human Rights , whose importance is far greater than one man and his political ambitions. You don’t have to read very far down the declaration in order to find violations by Trump’s approach:
Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2 : Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
What Trump is doing matters to us all, and may yet be challenged under International Law. The USA sets itself at the forefront of the liberal world in terms of its approach to freedom, equality and the rule of law.
“All victims of human rights abuses should be able to look to the Human Rights Council as a forum and a springboard for action.”Ban Ki-moon, UN Secretary-General, 12 March 2007, Opening of the 4th Human Rights Council Session