Today’s post brought to you by Melissa Vo!
In case you’ve been living under a rock: On Friday, January 27th, President Trump signed an executive order barring immigrants and non-citizen visitors from seven Arab countries from entering the United States. Trump responded to immediate outrage by saying, “My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months…" Trump’s statement referred to the 2011 decision by President Obama and the State Department to stop processing refugees from Iraq for six months. In this article, we’ll take a closer look at the two immigration regulations and highlight places where they overlap and differ.
Broadly, both Obama’s and Trump’s policies limit immigration on a temporary basis. They both applied more stringent immigration policy in an attempt to increase national security against Islamic terrorism.
However, Trump’s executive order and Obama’s 2011 policy are fundamentally different. Trump’s order applies to seven countries and fully suspends travel of all immigrants and refugees for 120 days. This initially included even lawful permanent residents of the U.S., although the Trump administration ultimately decided to permit them to enter on a case-by-case basis.
In contrast, Obama’s suspension and review of vetting procedures only applied to refugees and applicants for Special Immigrant Visas (SIVs). Obama’s order was also limited to one country (Iraq). Even then, during the implementation of Obama’s 2011 policy, refugees from Iraq were still admitted into the country.
Here’s a quick summary of the key differences between Obama’s 2011 policy and Trump’s executive order:
Why these seven countries?
"There were further travel restrictions already in place from those seven countries," Sean Spicer said on ABC's "This Week."
The seven affected countries were originally identified by a rider to the Omnibus Spending Bill, which was signed by Obama on December 16, 2015 (this is separate from Obama’s 2011 policy limiting immigration from Iraq). The bill initially included four countries: Iraq, Syria, Iran, and Sudan. In 2016, the Department of Homeland Security added three more countries to the list: Libya, Somalia, and Yemen.
While Obama’s Omnibus rider selected out the same seven countries as Trump’s immigration bill, the similarities don’t extend much further. The Omnibus rider excluded dual citizens from these seven countries from participating in the Dual Waiver Program. This means that dual citizens were simply required to apply for a visa before entering the United States. In contrast, Trump’s order banned immigration from these countries altogether for 90 days and indefinitely for Syria.
What incited these policies in the first place?
Trump’s executive order was in response to a broad fear of would-be terrorists entering the United States. No person from any of the seven countries has been implicated in a fatal terrorist attack in the United States since 9/11.
In contrast, Obama’s policy was in response to a direct and known threat. In May 2011, Iraqi nationals in Bowling Green, Kentucky, plotted to send explosives, money, and weapons to Al-Qaida. The nationals had entered the U.S. as refugees from Iraq by lying about past terrorism on paperwork. After discovering this plot, the White House, under the Obama administration, initiated the suspension of refugees and applicants for Special Immigrant Visas (SIVs) in order to revise and strengthen the vetting process.
Of note, Kelly-Anne Conway incorrectly dubbed the averted terrorist plot the “Bowling Green Massacre” in a statement on February 2nd, 2017::
“I bet it’s brand new information to people that President Obama had a six-month ban on the Iraqi refugee program after two Iraqis came here to this country, were radicalized and were the masterminds behind the Bowling Green massacre. Most people don’t know that because it didn’t get covered.” Ms. Conway has since corrected her statement.
Why did federal judges turn down Trump’s ban?
Obama’s policy was not challenged. It was allowed to come to fruition and resulted in modifications of vetting procedures following a specific threat. In contrast, on February 9th, 2017, the 9th Circuit Court of Appeals unanimously repudiated the White House’s attempt to restore Trump’s travel ban. Why?
Essentially, the constitutionality of the ban was put into question, and the government did not offer sufficient justification for why refugees and immigrants from the seven countries were singled out as immediate threats. The ban was ruled unconstitutional under the Equal Protection Clause under the 14th Amendment and the Due Process of the 5th Amendment because the ban discriminates against Muslims. Additionally, the government did not justify why the current vetting and screening system was insufficient.
The court also rejected the government’s contention that the courts (the judiciary branch) had no right to question or review the executive order. Until the case reaches the Supreme Court of the United States, the ban will remain suspended.
Melissa Vo is a third-year law student in Philadelphia. She is an in-house legal intern and blogger at Borderwise.