What did President Trump actually say in his executive order on immigration? To find out, I did a close reading. I found no ban on Muslims entering the country, but I did find lots of other juicy bits, like an endorsement for letting any jurisdiction — like, say, Alabama or Dallas — restrict who can live there.
When Trump issued this executive order on Friday, it immediately became the most controversial act of his first tumultuous week of being president. In addition to the expected screaming from Democrats, Republican senators John McCain and Lindsey Graham issued a statement condemning it. Federal judges in New York and Boston ruled to block parts of the order. Protests erupted in cities and airports around the country. News media described the creation of the order as sloppy, since it didn’t include review by lawyers or staff of the affected departments. Even the Koch brothers have condemned it.
Does it ban Muslims? Does it apply only to countries where Trump does not do business? I reviewed the text of the order on whitehouse.gov, with some help from an annotated analysis in The New York Times. Yes, this order is written in legal language, but if you’re an educated writer, you should be able to read a contract — or an executive order — and understand what it says.
The order is 2,900 words long, so in this analysis I concentrate on the parts that are most controversial.
The weak title belies the provocative content
It’s traditional for laws and executive orders to have titles that fail to describe their actual intent. Here’s the title of this executive order:
Executive Order: Border Security and Immigration Enforcement Improvements
Improvements? Really? That’s too mild. Based on what I read, here’s a more accurate title:
I’m Blocking Nearly Everyone From Muslim-majority Countries That Export Terrorism
But executive orders don’t have titles like that.
What’s the justification for the ban?
In section 3, the order directs the Secretary of Homeland Security and other officials to “immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” This is the justification for the 90-day ban on immigration from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.
Here’s what it says, with my translation following:
To temporarily reduce investigative burdens on relevant agencies during the review period [that is, when the Homeland Security department is reviewing the visa requirements], and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
Translation: This actually says:
- We’re undertaking the ban to reduce the work of the Homeland Security department and because we’re worried about terrorism.
- We’re banning immigrants from the countries for which the Obama administration had revoked the Visa Waiver program [that’s the bit about 217(a)(12) and so on]
- We’re blocking both people visiting (nonimmigrants) and people seeking to live here (immigrants)
- We’re excluding diplomats from the ban [those are the visa exceptions]
This is the section that caused the immediate outcry, because it denied entry to people who had green cards (legal residents of the U.S. who were returning) and people already granted visas, even if they were in transit. That’s the action the judge in Boston suspended as illegal. Since the order, Trump officials have agreed that they should let green-card holders in. (In fact, green-card holders committed the attacks in Boston and San Bernardino, but of course, most of them are completely peaceful people from foreign countries doing work or joining spouses in America.)
Why these seven countries?
It’s true that Trump has no businesses in Iraq, Syria, Iran, Libya, Somalia, Sudan or Yemen. It’s also true that there is significant terrorist activity originating in or funded by these countries, and that’s why the Obama administration had made it harder for people from those countries to get visas. (Countries like Afghanistan and Pakistan also have lawless terrorist elements in them, but they’re essential to U.S. interests. And terrorists have come to the U.S. from countries like Saudi Arabia and U.A.E., but their governments are not hostile to the U.S., just some of their citizens.) By starting with this list, Trump can cite Obama’s list as his starting point. I don’t think the list of countries has anything to do with Trump’s businesses.
But, as hasn’t been widely reported, the order includes a plan to block immigration from other countries soon, too.
(d) Immediately upon receipt of the report . . . regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification. [The information referenced here is the documentation that countries provide regarding their immigrants to the U.S.]
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals . . . from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
Translation: We can add any other countries we want two months from now — or use this ban to force them to cough up information about their citizens.
Is this a Muslim ban?
The word Muslim appears nowhere in the executive order (which is no coincidence), but it does restrict Muslim refugees. It suspends the current refugee program for 120 days, plus a ban on Syrian refugees with no end date. After that . . .
. . . the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of [refugee] admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. . . .
. . . the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, . . .
Translation: We’ll eventually admit Christians, Yazidis, and other non-Muslims if they say they’re persecuted, but not Muslims — at least not quickly.
This doesn’t ban Muslims. It does prioritize non-Muslim (that is, mostly Christian) refugees. If you’re a Muslim suffering religious persecution (for example, due to strife between Sunni and Shi’ite Muslims, or because you are a moderate Muslim and your country is run by severe clerics), you go to the back of the line.
This basically says that in Trump’s America, we fear that Muslim refugees are dangerous.
It proposes that state and local governments can bar immigrants
I’ve seen no commentary at all on this passage, which seems significant to me:
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Translation: We’ll let cities and states block people from living there.
Naturally, Trump’s administration will only allow this if it is “lawful” — and there will be plenty of court cases about it. But it allows for everything from local Muslim bans in a state to publishing the names and addresses of refugees. I think this proposal will lead to violence.
Learning from both news coverage and the original text
I read and watched lots of coverage of this executive order and reaction to it over the weekend.
The news was great at getting out information about the size of protests and the rulings of judges. The arguments between Trump supporters and opponents on cable were useless for gathering information — it was like a debate between Red Sox and Yankee fans.
The news media concentrated on the short-term impacts, like people caught in transit, because that’s the “story” to tell — it has actual human beings in it. I also saw or heard pieces about scientists unable to enter the U.S., and research universities complaining about that.
I saw lots of analysis of the “Muslim ban” but not much describing that it applied only to refugees, not travelers. The executive order blocks travelers from the the proscribed countries, regardless of religion, and it currently blocks all refugees.
These are all relevant. But where’s the commentary about the other countries that Trump could add in 120 days? And where, pray tell, is the analysis of the language encouraging states and cities to make up their own immigration policies? When this controversy has died down a bit, those changes will matter even more.
Read the original text and view the commentary. Otherwise you’re not getting the whole story.