EDITOR’S NOTE: This story was written before a U.S. judge on Friday imposed a nationwide hold on President Donald Trump's ban on travelers and immigrants from seven predominantly Muslim countries, siding with two states that had challenged the executive order that has launched legal battles across the country.
President Donald Trump’s executive order to instate a 90-day travel ban and 120-day refugee ban for citizens of seven Muslim-majority countries in North Africa and the Middle East has garnered both praise and criticism from national and local officials.
Kansas lawmakers have largely condoned the president’s Jan. 27 order, which has been scrutinized by some as unconstitutional and contrary to American values. Despite the criticism, Trump’s order — ostensibly intended to give America time to improve the vetting process — may be constitutionally sound, according to Washburn University law professor David Rubenstein.
The order is largely intended to stop “individuals with terrorist ties” from entering the United States. It asserts that “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.”
Congressman Roger Marshall, R-Kan., who represents the 1st District and was sworn into office Jan. 3, issued a statement that said, “President Trump is ensuring that he is doing all he can to protect us from radical Islamic terror, and to secure channels of migration in the future. Though we would like to see a more specific definition worked through Congress, we understand the need for quick action, and we stand by him in this effort.”
The order triggered an international travel upheaval for residents of each of the seven countries — Somalia, Syria, Libya, Sudan, Iraq, Iran and Yemen — all of which previously had been identified for travel exceptions in the Terrorist Travel Prevention Act of 2015.
People traveling, visiting family in the U.S. and seeking resettlement were extemporaneously detained for hours at airports, much to the dismay of local relatives and advocacy groups, who protested the new measures.
The Department of Homeland Security issued a statement Jan. 29 that said, “Approximately 80 million international travelers enter the United States every year. Yesterday, less than 1 percent of the more than 325,000 international air travelers who arrive every day were inconvenienced while enhanced security measures were implemented.”
In response to the ban, U.S. Judge Ann M. Donnelly ruled that individuals traveling from those countries who had already arrived in U.S. airports after the order had been issued could not be removed from the country.
Donnelly held that petitioners had a “strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution.”
On Sunday, a White House spokesperson defended the order, saying, “Saturday’s ruling does not undercut the President’s executive order. All stopped visas will remain stopped. All halted admissions will remain halted. All restricted travel will remain prohibited. The executive order is a vital action toward strengthening America’s borders, and therefore sovereignty. The order remains in place.”
Arguments of constitutionality take on a different set of rules in immigration cases, according to Rubenstein, who specializes in immigration and constitutional law with a focus on executive power.
He said that historically, the Supreme Court has upheld special constitutional doctrines for immigration cases, adding that, “With immigration, the court has been extra-deferential to the federal government’s classification based on race and nationality. I think the question may be more open for religion, which is partly why the challenges may be focusing on that.”
Trump’s focus on religion is not explicit in the wording of the executive order. Other large Muslim-majority countries, including Indonesia, Egypt and Saudi Arabia, were not included in the list.
Rubenstein said “immigration is special” and “not in a way that is necessarily favorable to immigrant rights. If anything, it’s quite the opposite.”
Rubenstein said the Supreme Court has offered many reasons for the change in constitutional nuance over the years: that the constitution doesn’t apply to immigration, that it is not the court’s role to second guess the extraordinary power of the federal government as it pertains to national security, and that foreign relations are the domain of the executive branch.
“The court has sort of vacillated between those reasons and given immigration its own special place in the constitutional realm,” he said, adding that Trump’s travel ban becomes more questionable when considering recent statements made about religious priority.
On Jan. 27, the same day he signed the executive order, Trump was taped in an interview with David Brody of the Christian Broadcasting Network saying Christian refugees are seen as a priority in countries affected by the ban.
He later suggested that Christian Syrians subject to the ban would receive special treatment, thus constituting religious favoritism banned by the Establishment Clause of the First Amendment, according to Corey Brettschneider, a professor of political science at Brown University and author of “Trump vs. The Constitution.” He wrote an article on the matter published by Politico.
Some officials, such as Gov. Sam Brownback, approve of the order.
Taking to Twitter, Brownback stated, “This step, along with his prioritization of persecuted religions, indicates his commitment to helping those in need, while keeping America safe.”
Rubenstein said, “If nothing else, this case raises the question of whether or not immigration constitutional rights fall within the constitutional mainstream or whether the court’s precedents will stand, which have placed immigration within its own realm and given the federal government extraordinary power to discriminate in ways that would be unthinkable if applied to citizens.”
Local representatives have had mixed reviews of Trump’s temporary travel ban, given the large population of Somali residents in Garden City.
Sen. John Doll, R-Garden City, said that he doesn’t “feel that’s what our Founding Fathers had in mind when they created the Constitution.”
Doll noted that the local Somali community, if anything, has been on the receiving end of threats in Garden City, alluding to an alleged terrorist bombing plot that targeted the apartment complex at 312 W. Mary St., the epicenter of Garden City’s Somali Muslim community.
“I only speak of what I know, and what I know is that the Somali population of Garden City has been nothing but beneficial to our community,” Doll said.
State Rep. John Wheeler, R-Garden City, said Trump’s travel ban could have been executed more carefully, but ultimately is a kept promise that underpinned much of his campaign.
Wheeler added that he is sympathetic to the Somali residents of Garden City, “many of whom have been here for many years” and “are trying desperately to get their family members to join them.”
“As I say that, I don’t think that this is going to last forever,” he said. “I think the election reflects that we expect that our borders will be better protected for the people coming in, and I think we ought to do vetting on some of these countries. I’m not saying prohibition. I’m saying vetting.”
While the extent to which the vetting process can and will be improved remains unclear, Bill Clifford, Republican Precinct Committee Chairman for Finney County and a Finney County commissioner, agrees that Trump is delivering on many of the campaign promises that arguably won him the presidency.
“I think it’s one thing to make executive orders. It’s quite another to execute smoothly,” Clifford said. “He’s definitely responding to his base and following through on campaign promises to affect the country.”
Clifford said the public outcry in response to the travel ban has been a “knee-jerk reaction.”
“We may discover eventually that this is part of Trump’s style," Clifford said. "Obviously, he’s prone to hyperbole and exaggeration and shoot-from-the-hip comments, but I do believe it’s part of his strategy to try to affect things excessively and then compromise or back up to where he really wanted to go.”
Rubenstein isn’t surprised by Trump’s strategy, explaining that measures that have seemingly alarmed many are just issues Trump has been trumpeting since his campaign started.
“Trump ran on this platform,” Rubenstein said. “Not only did he run on this platform, this is why he rose in the polls from being like a joke to a very serious contender. He said build a wall, and his ratings spiked. He said ban Muslims, and his ratings spiked. This wasn’t just a throwaway issue for him. This is probably what got him to becoming a frontrunner, so it’s not surprising that he has come out of the gates with these executive orders.”