The flawed implementation of President Trump’s executive order banning immigration from seven majority Muslim countries brings to mind then-Speaker of the House Nancy Pelosi quip about Obamacare that “we have to pass the bill so that you can find out what is in it.” Now it seems President Trump had to sign the order to find out what was in it.
Every day, the president and the administration appears to be discovering new implications of the vague order, and laws are being made up on the fly with press releases and emails, rather than through our country’s democratic process. The executive order purports to “suspend entry into the United States, as immigrants and nonimmigrants… aliens from [seven] countries.” Nearly every word choice leaves room for uncertainty, creating the inevitable confusion and chaos that followed.
Consider the first word, “suspend.” Because the order allowed for case-by-case exceptions, no one knows who is actually “suspended” from entering. The administration is only slowly revealing some criteria for these waivers in press conferences and press releases. The exceptions are also apparently not being applied at consulates where a categorical ban on all visa applications and interviews is in effect.
The second word, “entry,” would seem not to apply to those already inside the United States, yet the administration is applying the ban to them anyway, formulating the policy in an unpublicized email to employees—many of whom were shocked by the announcement.
In a way, this decision makes legal sense, even if it is not apparent in the order, because a person must be “admissible” or legally allowed to enter to receive “status” in the United States. But it turns out that the ban is actually being applied to "any petition or application" for any benefits, including those that do not confer new status, such as green card renewals. Right now, the administration has said it is still “evaluating” whether it would cancel the status of foreign students who are not even applying for anything and are in the United States. It is a shutdown far beyond anything called for in the order itself.
Then there is the word “immigrants,” which refers to people who come to the United States to live permanently. This could refer to those who have not yet received an immigrant visa overseas, those who have received one but not yet come, to people who have both come and already received their “green cards” to become legal permanent residents (LPRs), or to all three groups.
On day 1 of the order, the State Department publicly announced a moratorium on immigrant visa applications barring the first group, and on day 2, it issued a secret memo to “provisionally revoke” all immigrant visas for those who had received them outside the country. This is more expansive than simply a ban on entry since everyone who had a visa—which could be valid for entry after the 90-day ban ends—would have to reapply now.
For LPRs, security officials on the first day determined that the order would not apply to them and told the airlines to allow them to board. But White House officials secretly overruled them on day 2, leading to chaos for arriving immigrants. In the morning of day 3, White House Chief of Staff Reince Priebus told NBC that it both did and did not apply to LPRs. Finally, by late in the day on day 3, Secretary of Homeland Security Kelly issued a two sentence press release stating that the ban did apply, but that he would allow LPRs to enter using his case-by-case exception authority.
We find no more clarity with the word “from,” which could mean residence, birth, nationality, or citizenship. It could potentially include people who have even visited the countries. The 2015 statute from which the president drew his list of seven countries required visa interviews and visa documents for certain tourists who had simply visited Iraq or Syria, making this one plausible view.
On day 1, the State Department announced that “citizenship” would be the determining factor. Then, in another statement on day 2, it said that the person’s “nationality” would determine their eligibility. Then, in an email to its employees, Citizenship and Immigration Services, the agency adjudicating non-visa immigration applications, stated that it applied to any “citizen or national.” In an FAQ online, Customs and Border Protection currently states that “travelers are being treated according to the travel document they present.”
To add to this confusion, someone with two nationalities may or may not be able to apply for a visa and enter. The State Department initially answered that they could not. But then the administration subsequently stated that people with dual citizenship or nationality can enter under their non-banned nationality. Yet the State Department still has a notice flatly denying any citizen the opportunity to apply for a visa, so it is unclear if this policy applies to applicants for new visas or benefits. The distinction between nationality and citizenship is also relevant here because Iranians, even if they are born abroad, cannot give up their nationality.
Everything about the Trump executive order works against America’s traditions and rule of law. Laws should be made after public debate through a democratic legislature. Americans should not have to discover the meaning of laws days after they are enforced. Conservatives rightly objected to Ms. Pelosi’s comment, but processes that keep the American public in the dark are the problem, whether done by a Democrat or a Republican.