NEW YORK — “No hate. No fear. Refugees are welcome here.” Thousands of protestors chanted the slogan at airports nationwide last week in response to President Donald Trump’s executive order temporarily banning travel from seven Muslim-majority countries.
“There is no other president ever that has effectively banned an entire religious group. This is breathtaking in its scope and in its disdain for the law,” said attorney David Leopold, past president of the Washington, DC-based American Immigration Lawyers Association (AILA).
“I think we are going to see whether Donald Trump has respect for the rule of law. I believe we are in a constitutional crisis; he has taken a sledgehammer to the Statue of Liberty. This goes well beyond the scope of his authority,” said Leopold.
Yet, Trump isn’t the first president to ban immigrants and refugees from the United States. Indeed, there have been numerous times in US history when immigrants and refugees couldn’t enter the country for various reasons, including political affiliation, nationality, epilepsy, and even for being paupers.
According to the Immigration and Nationality Act of 1995, passed under Democratic president Bill Clinton, the president has broad powers to regulate and restrict immigration without congressional approval. The president can act to restrict any non-citizen deemed “detrimental to the interests of the United States.”
“So this [Trump ban] is not an unprecedented exercise of Article 2 [of the Constitution],” said Lenni Benson, a law professor at New York Law School.
“But the manner in which it has been executed is beyond the norm. If this ban is motivated by religion — and that is the big question — does the executive have the power to do this? I don’t think so,” said Benson, who is also the director of Safe Passage Project.
Both an immigration lawyer and historian, Benson said there have been times in US history where either Congress or presidents sought to curb, or outright ban, groups from the country.
Back in 1789, president John Adams signed the Alien and Sedition Acts into law. The law raised the number of years before an immigrant could vote from five years to 14 years. It also included powers to deport foreigners, and punished public opposition to the government with fines or imprisonment.
Nearly a century later, in 1882, president Chester A. Arthur signed the Chinese Exclusion Act. Aside from barring “skilled and unskilled laborers and Chinese employed in mining” from entering the US, it also required Chinese already living there to obtain certificates for re-entry should they leave.
“The great fear was that society was changing and immigrants were seen as bringing about those changes,” said Brandeis University American Jewish History professor Jonathan Sarna. “Those who opposed this had the foresight to say that once you begin to restrict a group of people, those restrictions would spread based on health, based on the amount of money you could bring in, or based on nationality.”
When religion was a factor in banning immigration
When it comes to religion, it’s a bit more complicated, Benson said.
“In the 1870s, there was a period of time when Congress worried about Mormons. Mormons were recruiting in England, Germany and Scandinavia and there was talk of a Mormon ban,” Benson said.
Secretary of State William Evarts, who served under president Rutherford B. Hayes, attempted to convince European governments to prevent Mormon converts from coming to the US.
Later there were moves to limit or prevent Catholics from entering the country. At the time, the Protestant establishment viewed them as fomenting revolution in Europe, Benson said.
As for barring refugees from entering the country, president Franklin D. Roosevelt turned away the “St. Louis” in June 1939. It carried 937 people fleeing the Nazis; consequently, more than a quarter were murdered in the Holocaust.
‘There’s never been a presidential order to say an express religious group is not allowed to come in’
Roosevelt’s action is now considered one of the darker days in American history. That’s partly why Leopold, the son of Holocaust survivors, found Trump’s order so egregious.
“I never in my life expected to wake up on a Saturday morning and hear that people were being detained for deportation at airports in the country over their religion,” Leopold said.
Whether the refusal to allow the “St. Louis” to dock was purely based on religion is still speculative.
“There’s never been a presidential order to say an express religious group is not allowed to come in. But identity is complicated. Were they trying to exclude someone because they were Catholic, or because they were a pauper? Are we excluding people because they are Muslim? Or because they are a danger to society?” said Benson.
Because of what is perceived to be a Muslim ban, Trump’s immigration order faces numerous legal challenges.
Washington State Attorney General Bob Ferguson filed suit to declare key parts of the order unconstitutional. US Judge Ann M. Donnelly, a federal judge in New York, also held that the order violates petitioner’s rights “to Due Process and Equal Protection guaranteed by the United States Constitution.”
When a political opinion is not the ‘right’ one
Apart from questions of national origin and religion, there have also been times when the US sought to halt the influx of immigrants based on political persuasion.
In 1903, president Theodore Roosevelt signed The Anarchist Exclusion Act in response to the assassination of president William McKinley by the American anarchist Leon Czolgosz. It banned anarchists and others deemed to be political extremists from entering the country. Uniquely, the act also barred epileptics, beggars and “importers of prostitutes” from coming to the US.
Later, president Harry Truman vetoed the Internal Security Act of 1950, also known as Subversive Activities Control Act of 1950 or the McCarran Act. It sought to deport any immigrant thought to be a member of the Communist Party.
“Today, we are ‘protecting’ ourselves, as we were in 1924, against being flooded by immigrants from Eastern Europe. This is fantastic… We do not need to be protected against immigrants from these countries — on the contrary. We want to stretch out a helping hand, to save those who have managed to flee into Western Europe, to succor those who are brave enough to escape from barbarism, to welcome and restore them against the day when their countries will, as we hope, be free again,” said Truman’s June 25, 1952 veto.
So how is Trump’s order unique?
Is Trump’s order so different from past executive orders on immigration?
“What they’ll tell you is ‘don’t listen to that guy’ [me] and, ‘This is just like what [recent past president Barack] Obama did in 2011 or what [Democratic president Jimmy] Carter did,'” Leopold said.
Obama’s 2011 order was based on the discovery that two Iraqi refugees were implicated in bomb making in Iraq that targeted American soldiers.
As Jon Finer, former chief of staff to former secretary of state John Kerry, wrote in Foreign Policy, there never was a six-month ban on processing Iraqi refugee admissions, as Trump officials insist. Rather, the order slowed down the pace of resettlement while the government, with Congressional input, implemented certain security measures.
“My understanding of that [Obama] executive order is it was done with the full participation of all the agencies necessary to implement it. The order was fully vetted and drafted so no one in government was taken by surprise,” said Eleanor Pelta, an immigration attorney in Washington, DC.
Regarding the sanctions leveled against Iran in 1980 because of the hostage crisis, Carter announced there would be no new visas or renewal of visas issued for Iranian students or visitors, since students were responsible for taking over the US Embassy.
“As for not issuing visas, there was no longer an operational US Embassy in Tehran. So is that a precedent for this president to follow? I’m not willing to say that,” Benson said.
Additionally, Carter’s order didn’t exclude anyone needing to travel for humanitarian reasons. Trump’s order is also far more vague, she said.
It remains unclear whether people from the seven countries will be able to travel for humanitarian reasons, whether the ban will be extended to include other countries, and whether the time frame will be extended.
“Our advice for those in the US now who might be subject to the executive order, is not to make any travel arrangements for 90 days. For those who may have to travel urgently back home if, say, a loved one is sick, we don’t know if they will be granted a humanitarian exception,” Pelta said.