This past Monday, President Trump released a new executive order shutting down the refugee program for 120 days and banning immigration from six majority-Muslim countries for 90 days. President Trump attempted to justify these changes by stating in part that:
The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.
The government has refused to provide any additional details about these cases, but an investigation should not be seen as implying guilt. Almost all FBI terrorism investigations do not end with a terrorism conviction. Indeed, the numbers predict that of these 300 refugee investigations, only 1 will turn into a terrorism conviction and that conviction will not be for planning an attack against the United States. This claim about the FBI investigating refugees has turned out to be a groundless smear in the past, and history has shown that refugees have been less likely than others to commit acts of terrorism against the United States.
These 300 represent less than 0.009 percent of all refugees admitted since 1975. As the Cato Institute’s recent report found, only 20 refugees from 1975 to 2015 have attempted, planned, or carried out a terrorist attack inside the United States. Only 3 carried out a deadly terrorist attack, and all of those were before 1980. During the 40 years from 1975 to 2015, the annual risk of death by a refugee terrorist to a U.S. resident was 1 in 3.64 billion. This makes them about 1,000 times less likely to kill a U.S. resident in a terrorist attack than other foreign-born people.
Unfortunately, this type of baseless fearmongering about FBI investigations into refugees is not new. The FBI told ABC News in 2013 that it was investigating “dozens” of refugees as terrorists. In the 26 months after the FBI made the claim, the agency arrested and convicted 31 individuals for “terrorism-related” offenses. Of these, a majority were U.S.-born citizens. Another 4 convictions were not even for terrorism offenses. In the end, the Bureau only arrested and put away for terrorism offenses 9 foreign-born residents total after it claimed “dozens” of open cases against refugees specifically. None of these individuals were planning attacks inside the United States.
So how often do FBI national security investigations actually turn into convictions?
According to the New York Times in 2016, the Bureau has averaged “7,000 to 10,000 preliminary or full investigations involving international terrorism annually in recent years.” This appears to contrast with Reuters, which reported this week that the 300 refugee investigations were part of 1,000 “counterterrorism investigations” into persons tied to “Islamic State or individuals inspired by the militant group.” Similarly, FBI Director James Comey said in May 2016 that there were “north of a thousand cases” that they were investigating of U.S. residents radicalized by the Islamic State online.
The best explanation that I see for this difference is that the Comey/Reuters number refers to a narrower subset of investigations involving the Islamic State and, more importantly, only reflects a snapshot in time. At any particular moment, there may be 1,000 or so investigations open, but there are between 7,000 and 10,000 investigations for the entire year.
This means that very few FBI investigations end in a terrorism conviction. In the 5 years from 2010 to 2014, the entire United States government averaged just 27 terrorism convictions per year. Taking the middle of the 7,000 to 10,000 range for the number of new FBI investigations (8,500) would mean that only about 0.3 percent of all terrorism investigations end in terrorism convictions.*
If these individuals are involved with terrorism, it is very unlikely that they are attempting to harm the United States as opposed to supporting terror groups abroad. Less than 5 people per year were convicted of terrorism offenses in which they were targeting the United States in the five years from 2010 to 2014. This appears to be true today as well. Director Comey said in May 2016 that his main concern was people seeking to join the Islamic State overseas. This means that only 0.05 percent of all investigations end in the conviction of a person who was attempting terrorism in the United States.
Based on these percentages, we can predict that only 1 in 300 of these investigations will turn into a terrorism conviction and that it will not involve a domestic terror plot.
The FBI should continue to investigate people who it has reason to believe are involved in terrorism, but it is incorrect to assume that an investigation means that the person is guilty of a crime or even likely to be guilty of a crime. It is even more incorrect to jump to the conclusion that they pose a threat to anyone in the United States. The fact remains that refugees are less likely than others to commit acts of terrorism, and these new investigations do not change that fact.
*In the less likely scenario where the FBI opens only 1,000 terrorism investigations annually, 2.7 percent would end in terrorism convictions and 0.5 percent would end with convictions for an offense targeting the U.S. These numbers would predict that of these 300 refugees, only 8 will be convicted of a terrorism offense. Of these, only 1 will have planned an attack targeting people inside the United States.
I have previously reviewed the ineffective arguments that the Trump administration has used to rebut the statutory argument against its nearly complete ban on immigration from seven majority Muslim countries in State of Washington v. Donald Trump. This argument will have a more direct bearing on two other cases, one by the American Immigration Council in Washington (Ali V. Trump) and another by the American Civil Liberties Union in Maryland (IRAP v. Donald Trump). The formidable Josh Blackman, Cato adjunct scholar and Associate Professor of Law at the South Texas College of Law, thinks he may have found a couple of ways to save the statutory (as opposed to constitutional) case for the government. He explains them in a series of posts on his blog (see 1, 2, 3, and 4).
An Apparent Conflict
My argument has rested on section 202(a)(1)(A) of the Immigration and Nationality Act (INA), as amended in 1965 (8 U.S.C. 1152(a)(1)(A)):
Except as specifically provided in paragraph (2) and in sections 101(a)(27), 201(b)(2)(A)(i), and 203 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
The Trump administration has insisted that it nonetheless has the authority to discriminate under section 212(f) of the INA (8 U.S.C. 1182(f)), as originally enacted in 1952:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
I have previously noted in more detail that in the case of such a conflict, the rules of construction dictate that section 202 must be seen as limiting (not repealing) section 212 because 1) it was enacted later in time, 2) it is a more specific restriction on a general authority in 212, 3) it would cease to have effect if 212 could be invoked to discriminate at any time, 4) it specifies with added emphasis (“specifically”) the only statutory exceptions to the non discrimination rule (leaving out 212(f)), and 5) it fits into a statutory scheme that was intended to produce a legal immigration system in which each nationality was allotted an equal share of the annual visa quotas, which compose the remainder of section 202.
If section 202 does limit section 212, then banning a nationality from the United States would not be a “facially legitimate” reason for denying the visa (see Kerry v. Din).
Entry v. Visa Issuance
Professor Blackman does not appear to dispute this analysis. Rather, he argues that the sections are actually not in conflict at all because 212 refers to “entry,” while 202 refers only to the “issuance of an immigrant visa.” Because an immigrant visa does not guarantee the right of entry under section 221(h), he argues that the government could deny entry, even if it was unbiased in visa issuance. To begin with, this interpretation would mean that the government could discriminate in adjustment of status adjudications of immigrants inside the United States, even without a presidential proclamation that these immigrants are detrimental to the United States. Is the government really prepared to argue that Congress specifically made this option available to the administration?
Of course, it did not. As I explained in my last post, the use of section 212(f) imposes a ground of “inadmissibility” that applies equally to entry and visa issuance. While denial of entry and denial of a visa are indeed two separate activities, the imposition of a ground of inadmissibility is not. It automatically applies to both, which is why all 212(f) proclamations are also added immediately to the Foreign Affairs Manual that governs visa adjudications. Thus, the government cannot discriminate under 212(f) without violating 202(a)(1)(A). This is why the executive order admits that the Secretary of State will be enforcing it at consulates abroad to the same extent as the Secretary of Homeland Security in the United States and why the department immediately suspended visa issuances.
The professor responded to this point by stating that section 212(f) “is not a simple admissibility policy, but a far broader power to exclude those who are detrimental to American interests.” I have never heard of simple (or complex) admissibility policies. One requirement for admission is that a person be eligible to enter the United States legally. This is no different or more complex than the many other types of inadmissibilities listed in section 212. If a person is inadmissible because they cannot lawfully enter, they are inadmissible to the same extent and in the same way as if they had a dangerous communicable disease.
Moreover, as I have also pointed out last year and in my recent post, it is inaccurate to understand “visa” in section 202 to mean only the visa document that grants the right to travel to and request entry at a port. “Visa” is defined to include “status” in section 202. Thus, section 202(a)(1)(A) actually means “no person shall be discriminated against in the issuance of an immigrant visa or legal permanent residency status.” The determination of eligibility to enter is the determination of whether to issue legal permanent residency status to the alien (note how the INA creates an equivalency between being granted entry and otherwise being granted status). Because denying entry to certain nationalities would discriminate in the issuance of status, the government would be in violation of 202(a)(1)(A) just as much by denying entry or status as by denying visas.
The fact that sections 202 and 203 include “status” becomes especially clear in the text when, in subsection (d) of section 203, it describes spouses and children of primary applicants as “entitled to an immigrant status and the immediate issuance of a visa.” More importantly, if the government defined “visa” to mean only the visa document allowing the person to come to the United States to request entry, then Congress’s carefully constructed “visa” quotas in sections 202 and 203 would not include status determinations for individuals residing inside the United States on temporary visas. This would be at odds with the State Department’s own regulations requiring not only that the visa caps include status determinations, but that they essentially only include them. Section 245 clearly instructs Secretary of State to treat "status" determinations against the cap.
While I personally would welcome this change, as it would surge immigration levels to heights not seen since the early 20th century, it is at odds with nearly every possible detail of the legislative history or publicly understood meaning of the text for over 6 decades. This argument would require the government to argue that Congress really wanted to limit the number of documents, not the number of actual persons entering and residing in the country. As the Supreme Court put it in Davis v. Michigan Dept. of Treasury, “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” The statutory scheme is about limiting immigrants, not travel documents.
This does not mean that a person with a visa would be entitled to enter, but rather that each nationality (as well as race or gender) would simply be entitled to equal treatment at a port of entry. Notice the wording of section 221(h):
Nothing in this chapter shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible...
Each applicant could still be excluded based on other grounds of inadmissibility. Section 202(a)(1)(A) simply removes the power to declare someone inadmissible based on their nationality.
Moreover, as Justice Scalia once wrote, “it is a venerable principle that a law will not be interpreted to produce absurd results.” A system under which the government is required to issue visas (or statuses) that it has no intent to honor, I submit, is indeed absurd. Ian Samuel highlights the absurdity to nice effect:
When it passed the no-discrimination rule, the Section  enthusiasts imagine, Congress was perfectly fine with excluding people from the United States on the basis of national origin. It simply wanted that exclusion to happen at the border, rather than at the foreign consular office. “No Irish shall be admitted,” the President (on this view) may say; “but of course you are absolutely entitled to come and see the sights of Terminal 4.”
I suspect that if presented with these facts, only a judge with no sympathy whatsoever for the view that Congress can constitutionally restrict the authority of the president in this area, as Professor Blackman seems also to believe, would adopt this opinion.
Visa Revocation v. Visa Issuance
Professor Blackman, however, reasons that, even if this is true, the administration still possesses the authority to revoke visas under section 221(i). But this is just word games. Revocation is nothing more than “the reversal of an act.” Thus, to revoke an issued visa is to un-issue the visa. But the text is clear that decisions over issuance cannot consider nationality. The professor’s uber-literalist reading would mean that section 202(a)(1)(A) would not protect against discrimination in the denial of a visa either, only in its issuance.
Moreover, think about this scheme that the government asserts Congress created. Congress mandated that each nationality receive an equal share of the annual immigration quotas and that the administration maintain waiting lists for each nationality. It required that after any waiting period, immigrants’ nationality not be taken into account in the issuance of visas or status. Yet at the same time, it allowed discrimination against immigrants after they received their visas or statuses. Apparently, Congress was very concerned about rooting out bias in paperwork, but not in actual practice.
This proposed scheme defies the Supreme Court’s requirement that courts must “fit, if possible, all parts [of the statute] into an harmonious whole.” Moreover, this system is no less "absurd" than the one in which the immigrants are allowed to land at Dulles International Airport only to be turned back. Issuing visas with the intention to revoke them amounts to governmental deception. It would be very much like if a court ordered railroads to issue tickets to people without regard for race, and the companies complied, only to revoke them seconds later.
Visa Procedures v. Visa Issuance
Professor Blackman still provides one final “out” for the administration, citing the exception to the subparagraph (A) of section 202(a)(1) in subparagraph (B):
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.
This provision was adopted in 1996 to allow the Clinton administration to require Vietnamese living illegally in Hong Kong to travel back to Vietnam to apply for immigrant visas. The administration argued that it was already permitted to take these actions as part of its inherent foreign affairs powers (the government's constitutional argument), but in 1995, the D.C. Circuit found the administration in violation of the discrimination prohibition in section 202(a)(1), stating that “Congress could hardly have chosen more explicit language.” Congress implemented subparagraph (B) in 1996. The Supreme Court vacated the earlier decision in light of the change, and the D.C. Circuit reversed, holding, “the State Department policy is unreviewable” because this “section grants to the Secretary discretion to prescribe the place at which aliens apply for immigrant visas…” In any case, the original 1995 decision provides a reason to believe that courts can enforce section 202(a)(1)(A).
Professor Blackman argues that a permissible construction of the amendment would allow the administration to implement the immigration ban as “procedure” for processing applications. Even the government had trouble getting out this argument with any certitude. Its brief merely stated that it “suggests that maybe” the ban could be viewed as “procedure.” It was hesitant with good reason. This interpretation would completely neuter subparagraph (A)’s prohibition on discrimination, which Congress consciously chose to leave in place rather than repeal in 1996. Subparagraph (A) bars discrimination in visa issuance. The executive order is about discriminating in the issuance or non-issuance of visas or statuses. Defining the refusal to issue a visa as a “procedure” renders subparagraph (A) a nullity, and as the Supreme Court stated in Smith v. Robinson (1984), statutes "should be interpreted so as to give effect to each." Taking the word “issuance” seriously demands that it at least refer to the decision over whether to issue a visa.
How Congress understood the law
While textualists like Professor Blackman disfavor the unenacted intentions of Congress, the legislative history can enlighten us to the publicly understood meaning of the law at the time it was enacted (such as whether the visa limitations were interpreted to mean limitations on documents or limitations on persons). It is clear from the debate over the Immigration Act of 1965, particularly section 202, that the entire purpose of the Immigration Act of 1965 was to end the earlier system of immigration based on national origin.
President Johnson’s Message to Congress: The principal reform called for is the elimination of the national origins quota system. That system is incompatible with our basic American tradition. … The procedures imply that men and women from some countries are, just because of where they come from, more desirable citizens than others. …In addition, the bill would… eliminate the discriminatory “Asia-Pacific triangle” provisions of the existing law.
Senate Committee Report: The principal purpose of the bill, as amended, is to repeal the national origin quota[s]. …The new selection system is based upon a first-come, first-served principle, without regard to place of birth, within the preference categories, subject to specified limitations designed to prevent an unreasonable allocation of visa numbers to any one foreign state.
House Committee Report: The purpose of the bill is the elimination of the national origins system as the basis for the selection of immigrants to the United States. …[quoting President Truman] The greatest vice of the present quota system, however, is that it discriminates, deliberately and intentionally, against many of the peoples of the world. …By this legislation… the last vestige of discrimination against Asian persons is removed from the immigration laws. …The rationale for the abolition of the national origins quota system is that it deliberately discriminates against many of the peoples of the world.
President Johnson’s Signing Statement: [O]ver four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system. … Today, with my signature, this system is abolished. We can now believe that it will never again shadow the gate to the American Nation with the twin barriers of prejudice and privilege.
Over and over again, in the congressional record, we hear comments about replacing “insensitivity and discrimination with concern and equity” or sweeping away “any discrimination on account of race” or overturning “discrimination in past years against friendly nations and friendly people” or ending “discrimination and implied favoritism for the nationals of some countries against the nationals of other countries” or discarding “our outdated and discriminatory immigration laws.” On section 202 in particular, Sen. James Easterland commented:
The President said: ‘The principal reform called for is the elimination of the national origins quota system.’ … In an attempt to carry out the request of the President, we find that section 2 of the bill has amended section 202 of the Immigration and Nationality Act to provide as follows: (a) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence…
At the very least, we can say that no member of Congress was interpreting "visa issuance" to mean that the 1965 act might not actually change the composition of legal immigration or that the president could clarify that these detrimental Asians were still unwelcome "at entry."
Professor Blackman notes that under section 202(a)(2), applicants from countries with more applicants are, in fact, still discriminated against based on nationality. Because each country—no matter how large or small—receives an equal share of the visas, applicants from populous countries with large numbers of visa applicants are disadvantaged, as I have written about repeatedly. This was an unfortunate concession in 1965, but it has no impact on section 202(a)(1)(A) because this type of discrimination is one of the specific exceptions to the rule. Indeed, the mere existence of such specific exceptions proves that Congress considered when to allow discrimination and chose not to allow it under section 212(f).
Despite this concession, the new quota system—even if it still accounts for birth in a way—still means, as the professor himself puts it, that every national from “each country has the same opportunity to petition for a visa and receive a visa up to the limitation.” This is exactly the opportunity being denied to nationals of the seven barred countries. (On this point, Peter Margulies has interesting argument that the mere existence of the INA's complex edifice of numerous “specific and detailed provisions" itself provides a reason to view the executive order as unlawful—an argument that he, Blackman, and Cato’s Ilya Shapiro used to great effect in Cato’s amicus brief in U.S. v. Texas.)
No exception for difficult to screen individuals
Nor did Congress intend for there to be an exception to the rule for countries where it is difficult to screen immigrants. During the hearings on the bill, the Judiciary Committee heard testimony against the bill, arguing this point:
It is virtually impossible, according to security officers, to screen out Communists among refugees from Iron Curtain countries for the excellent reason that there is no way to substantiate or refute biographical evidence which they submit. An increase in immigration from the countries of Eastern Europe or Red China, both of which are dominated by Communists, could only increase this danger.
It is an impossibility—and I think you can get the Immigration Service to verify this—to set up a sufficient screening process to be sure that China would not send to this country literally thousands of persons who have as their first and foremost idea espionage operations against the United States—Communist plants. I do not think it is possible under the present setup in the Immigration Service to screen these people… it is inconceivable for me to believe that every one of these refugees is an anti-Communist.
And in the most Trump-like language:
Our proposed policy under S. 500 would seem to invite a reenactment of the chronicle of the Trojan Horse wherein the enemies of our way of life are willingly brought within our walls.
Congress debated this exact point of whether the Immigration Act of 1965 would result in the entry of unvetted immigrants. As Rep. O.C. Fisher said on the House floor during this debate:
Mr. Chairman, there is a serious security threat which would result in the expected substantial increase in Asiatic migration to these shores. At the present time, the flow of Asiatics to this country is checked by the simple device of quota limitation to which all Asiatics are chargeable. With a substantial increase in immigration of Asiatics, coming not only from the Orient, but from every country in which they reside, the problem of procuring background information to screen out subversives becomes increasingly difficult. Moreover, most of the background information regarding Communist activities would be located in oriental Communist countries; and hence unavailable to our security officials.
Furthermore, the language barriers, with the many dialects unfamiliar to our immigration officers, would only compound the danger inherent in an attempt to screen out security threats; and I have no doubt that the international Communist conspiracy will avail itself of the opportunity to increase its penetration of our country. The passage of this bill will present an inviting opportunity. It has been argued that because some European countries now have a larger annual quota than others, this country regards the people of the larger quota nations as being better people than those in countries with the lower quotas. That is a ridiculous argument. Immigration laws, like trade laws and the like, come under the normal exercise of sovereign power. (My emphasis).
The congressman’s entire argument here is the Trump administration’s case. An unbiased immigration system will allow into the country people who are difficult to screen. In this way, he argues that discrimination is not malevolent, but merely a matter of national security under “the normal exercise of sovereign power.” Congress determined that this concern was not a valid reason for banning (or nearly banning) certain nationalities. Judiciary Chairman Rep. Emanuel Celler, the bill’s main author, dispatched with it as follows:
There can be no fear of Communists or subversives entering this country. The same safeguards that are in the law with reference to internal security are maintained. They are not changed one iota; therefore, there should be no fear in that connection.
Over in the Senate, Senator Everett Dirksen, the Republican Minority Leader, responded:
It has been said that we shall get a great number of undesirables. None of the screening process which has been carried in existing law has been forfeited in the pending bill. Applicants still have to be screened.
Congress considered Donald Trump’s argument and rejected it. The idea that President Johnson could have signed the law and used section 212(f) to undo Congress’s work to implement the exact type of discrimination that it had repealed is preposterous. The Trump administration is violating both the spirit and the letter of the law.
A federal judge in Seattle paused enforcement of President Trump’s executive order banning almost all immigration from seven countries in the State of Washington v. Donald Trump. The same judge will also hear a lawsuit brought by American Immigration Council (AIC), which makes the argument that I have made here and in the New York Times that the order is illegal as applied to immigrants coming to live in the U.S. permanently.
Washington’s main claims were constitutional, and it sought to have the entire order overturned. Nonetheless, the government did partially respond to the main argument in the AIC complaint, which is:
Section 202(a)(1) of the Immigration and Nationality Act [INA]…expressly provides for the non-discriminatory issuance of immigrant visas; it mandates that, with limited exceptions not relevant here, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence."
[INA section 202(a)(1)] was intended to protect the interests of both U.S. citizen and lawful permanent resident immigrant visa petitioners as well as immigrant visa applicants or holders. The EO discriminates against immigrant visa applicants or holders on the basis of their “nationality, place of birth, or place or residence,” and therefore is discriminatory and violates [INA section 202(a)(1)].
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Resolution of Conflict
There is an apparent conflict between the statutes. In the case of conflict, the rule of construction is 1) “to give effect to each but 2) to allow a later enacted 3) more specific statute to amend an earlier, more general statute,” Smith v. Robinson (1984).
On point 1, the government provided no argument that the section 202(a)(1) would still have “effect” as a prohibition if the president could choose to waive it at any time that he felt that a nationality was a detriment. It merely stated that it applies “in the absence of action by the President.” Judge Robart should have asked whether there is any circumstance in which the executive branch chooses to discriminate against a certain nationality in which they would describe those excluded nationals as not “detrimental” to the United States. Of course, no such case exists, meaning that the government’s argument would effectively nullify section 202(a)(1), which is naturally its intention.
On point 2, the government neglects to mention that 8 U.S.C. 1182(f) was enacted in the Immigration and Nationality Act of 1952, which was amended by 8 U.S.C. 1152(a)(1) in the Immigration Act of 1965. Judge Robart at oral arguments considered this point important, stating that this “Congress had to be aware of” 212(f) but chose to enact the sweeping prohibition anyway. On point 3, the government provides the following argument:
Section 212(f) is easily reconciled with section 1152(a)(1)(A): the latter sets forth the general default rule that applies in the absence of action by the President, whereas section 212(f) governs the specific instance in which the President proclaims that the entry of a “class of aliens” would be “detrimental the interests of the United States.”
This analysis cannot be taken seriously. Section 212(f) allows the authority to the president to ban any class of alien for any reason. 202(a)(1) limits this authority only for one small category of aliens, immigrant visa applicants. Moreover, 212(f) is in a general section of the law dealing with inadmissibility for all aliens, not just immigrants, whereas section 202(a)(1) is a section dealing only with immigrants. This argument from the government almost becomes humorous in light of its argument in the very next paragraph, that there is no general prohibition on discriminating based on nationality.
Section  generally establishes a uniform annual numerical limit on immigrant visas for nationals of each foreign country. Had Congress intended to enact a general bar against nationality-based discrimination, it would have enacted such a bar as a general provision of the INA, rather than as a subpart of a subsection speaking to the implementation of nationality-based numerical limitation for the issuance of immigrant visas. (Emphasis added)
In other words, the government is using the exact opposite argument here: that section 202(a)(1) is so specific that it cannot apply to the general authority to exclude aliens in section 212(f). The U.S. attorney at oral arguments repeated this line, stating that “we think [202(a)(1) is] a narrow section of the statute” as opposed to the “broader authority” under section 212(f). In other words, section 202 is both too general and specific. The government would like to have its discriminatory cake and eat it too.
The government also ignores a fourth rule applicable here. Inclusion implies exclusion. As Judge Robart said, section 202(a)(1) “makes a number of exceptions, but it doesn’t except” section 212(f). Section 202(a), which was enacted 13 years after 212(f), states that the government may not discriminate against immigrant visa applicants based on their nationality, place of birth, or place of residence “Except as specifically provided in paragraph (2) [allocating visas on equal per country basis] and in sections 101(a)(27) [special immigrants], 201(b)(2)(A)(i) [preferences for immediate family members], and 203 [visa distribution based on family and employment criteria]” (my emphasis). Section 212(f) was specifically left out of the exceptions, which demonstrates that Congress did not want to include it as an exception to the rule (whether the government wants it to be a “general” rule or a “specific” one).
Finally, for good measure, a fifth principle of construction states, as Justice Antonin Scalia stated in United Savings Association of Texas v. Timbers of Inwood Forest Associates, “Statutory construction, however, is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” In this case, as the government admits, the statutory scheme is to create a system of immigration that is unbiased, in which every country receives an equal apportionment of the visas for each year. Indeed, the entire 1965 act was written for that express purpose, which President Trump has now undone.
Perhaps believing their argument on this point insufficient, the government turns to other statutes as providing the president the authority to discriminate against immigrant visa applicants:
Section 202(a)(1)(B) clarifies that subsection (A) is not to be “construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” The clarification suggests that the Executive Order, in part or in whole, may not be covered by the restrictions of subsection (A) because the Executive Order governs the procedures for pausing then resuming visa applications.
Even the government could not get this argument out with a definitive “it is not covered” but rather a “suggest that maybe.” Subparagraph (A) pertains to, if nothing else, the decision to issue or not issue a visa, and the decision to not issue is at the heart of this executive order. If subparagraph (B) is read to allow the president the ability to not issue or to revoke a visa based on nationality, then subparagraph (A) has no effect. Aside from ignoring the first rule of construction, this obviously cannot be the case because subparagraph (B) was added to allow President Clinton to require Vietnamese asylum seekers to apply for immigrant visas in Vietnam. Congress specifically chose to leave subparagraph (A) rather than repeal it, demonstrating its intent to have it constrain the executive.
The government further claims that the last Congress’s visa waiver program changes requiring that nonimmigrant nationals of these seven countries travel to the United States only with a visa proves that Congress has approved this discrimination.
The 2015 amendment to the INA…has drawn the exact same nationality-based distinctions as the Executive Order.
First of all, this is simply incorrect. The amendment specifically included people who had visited those countries. Thus, it was broader than simply nationality. Second of all, these procedures had no impact on immigrant visa applicants who are protected from discrimination. Moreover, the fact that barely a year before the executive order Congress specifically created procedures under which these nationals can enter the country shows that Congress does not agree with the president that these nationals are a “detriment” to the United States. Indeed, it shows just the opposite: that Congress wanted them to have an opportunity to come if they obtained a valid visa.
Finally, the government turns as a last gasp toward its inherent national security powers:
Indeed, under the State’s view, the United States could not suspend entry of a country with which the United States is at war. The INA plainly does not require that result.
The United States is not at war with any of these countries, so the court need not reach a conclusion about how the INA would impact such a case. But it goes without saying that the government would not be relying on its statutory authority in such a case, and so the question would be irrelevant to such a situation. This is likely what provoked Judge Robart’s eye-rolling response, “You’ve shaken those bones just about as much as you can get out of them.”
Moreover, the Executive Order does not label these immigrants actual threats to the United States. Rather, it claims that the inability to vet them makes them a “detriment,” a seemingly much lower threshold, and the argument is that the INA makes an exception for “detrimental” aliens. This is nowhere expressed in the INA itself and, as previously demonstrated, flies in the face of the plain language of section 202(a)(1)(A), which specifically lists the only exceptions to it.
Importantly, the discriminatory pre-1965 act system was justified partially on this exact claim, that immigrants from certain countries may be threats and thus discriminated against. As Rep. Fisher said on the House floor in 1965:
There is a serious security threat which would result in the expected substantial increase in Asiatic migration to these shores. At the present time, the flow of Asiatics to this country is checked by the simple device of quota limitation to which all Asiatics are chargeable. With a substantial increase in immigration of Asiatics, coming not only from the Orient, but from every country in which they reside, the problem of procuring background information to screen out subversives becomes increasingly difficult.
Moreover, most of the background information regarding Communist activities would be located in oriental Communist countries; and hence unavailable to our security officials. Furthermore, the language barriers, with the many dialects unfamiliar to our immigration officers, would only compound the danger inherent in an attempt to screen out security threats; and I have no doubt that the international Communist conspiracy will avail itself of the opportunity to increase its penetration of our country.
The passage of this bill will present an inviting opportunity. It has been argued that because some European countries now have a larger annual quota than others, this country regards the people of the larger quota nations as being better people than those in countries with the lower quotas. That is a ridiculous argument. Immigration laws, like trade laws and the like, come under the normal exercise of sovereign power. (My emphasis).
Rep. Celler, the bill’s author, responded to this concern:
There can be no fear of Communists or subversives entering this country. The same safeguards that are in the law with reference to internal security are maintained. They are not changed one iota; therefore, there should be no fear in that connection.
The idea that President Johnson could have signed the act and then, on the basis the government asserts here, ban all Asian immigrants to the United States flies in the face of the letter of the law and its intent. Yet that is exactly what is being asserted here. The passage of time and the change in the targets of discrimination does not make what would have been illegal then legal now. President Trump is violating the law, and Judge Robart was clearheaded enough to see it.
President Trump issued an executive order on Friday that includes a ban on the entry of virtually all nationals from several countries. The same day, the New York Times published my argument that the portion of the ban that bars immigrants or legal permanent residents violates the law, which bans discrimination against immigrants based on national origin.
Andrew McCarthy of National Review Online was kind enough to take the time to publish a response (“Trump’s Exclusion of Aliens from Specific Countries Is Legal”). Because Mr. McCarthy’s article demonstrates significant confusion over my argument, the facts, and the laws at issue, it surprised me to see National Review editor Rich Lowry also cite it favorably. Despite the weakness of its analysis, the piece provides me an opportunity to clarify and reinforce some aspects of my argument that brevity required me to excise from the Times.
1. The Constitution gives the power to make immigration laws to Congress. Mr. McCarthy writes:
Under the Constitution, as Thomas Jefferson wrote shortly after its adoption, “the transaction of business with foreign nations is Executive altogether.” . . . In the international arena, then, if there is arguable conflict between a presidential policy and a congressional statute, the president’s policy will take precedence in the absence of some clear constitutional commitment of the subject matter to legislative resolution.
In other words, the president can ignore congressional limits in this area. He cites case law in which courts describe the president’s foreign affairs powers with respect to relations with foreign governments as expansive, but cites no case that concludes the president can ignore Congress to exclude immigrants. It is reminiscent of President Nixon’s famous argument that “when the president does it, that means it is not illegal.” It is Congress, not the president, that makes immigration law. “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over… the admission of aliens,” ruled the Supreme Court in Oceanic Steam Navigation Co. v. Stranahan.
Mr. McCarthy had no problem defending this view when the actions at issue were President Obama’s, which were also justified based on “security,” but now adopts it to defend President Trump’s. As my Cato colleagues wrote at the time, “it is not for the president alone to make foundational changes to immigration law—in conflict with the laws passed by Congress and in ways that go beyond constitutionally authorized executive power.”
2. President Trump cannot use the supposed “purpose” of a statute to override its plain meaning. Mr. McCarthy quotes the relevant portion of the Immigration Act of 1965 (8 U.S.C. 1152(a)) that amended the Immigration and Nationality Act of 1952, which clearly prohibits discrimination in the issuance of an immigrant visa based on national origin. But Mr. McCarthy states:
…the purpose of the anti-discrimination provision (signed by President Lyndon Johnson in 1965) was to end the racially and ethnically discriminatory “national origins” immigration practice that was skewed in favor of Western Europe. Trump’s executive order, to the contrary, is in no way an effort to affect the racial or ethnic composition of the nation or its incoming immigrants.
Mr. McCarthy gives no citation for this claim—which contradicts everything the president and his advisors have been saying about the intent being to ban Muslims—but regardless of Mr. Trump’s intention, the result of his actions does affect the ethnic composition of the country, which was indeed one of the actions that Congress in 1965 thought it was banning.
But Mr. McCarthy is again claiming that the president can ignore the plain meaning of the laws of Congress, this time based on its supposed “purpose.” But as my colleagues at the Cato Institute put it, “Unenacted legislative intentions are not law under the Constitution.” It is the text on the page that makes law. Mr. McCarthy condemned this type of legal reasoning as a “post-law” argument when President Obama reasoned this same way in the Obamacare case, King v. Burwell, yet he eagerly adopts it now to defend President Trump.
3. President Trump cannot just pick and choose which statutes to enforce. Mr. McCarthy cites the relevant portion of the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(f)) that grants authority to the president to suspend “any class of aliens” he deems “detrimental to the interests of the United States.” He states that this provision allows President Trump to simply ignore the ban on discriminating based on national origin. But a basic rule of statutory construction holds that in the case of a conflict, the statute enacted most recently wins. In this case, that would be the 1965 amendments banning discrimination in the 1952 Act.
Moreover, as the Supreme Court said in Beals v. Hale, “statutes which apparently conflict with each other are to be reconciled, as far as may be, on any fair hypothesis, and validity given to each.” My view treats the 1952 Act as a general authority subject to a specific limitation by the amendments of 1965—the statutes are reconciled, and both still have validity—but adopting Mr. McCarthy’s view would void the restriction from 1965 act’s amendments. If President Trump can legally ban a nationality by vaguely deeming them a “detriment,” then the authority in the 1965 act would have no power at all to prevent discrimination.
4. President Trump cannot remake the immigration system by executive order. The Immigration Act of 1965 was more than just a single provision prohibiting discrimination. As Justice Scalia has written, statutory construction “is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” Turning to the rest of the Immigration Act of 1965 makes clear that Congress intended and did create an entire system—or statutory scheme—of unbiased immigration. The rest of 8 U.S.C. 1152 is intended to give each country an equal shot at the number of visas issued each year. This entire system cannot be undone by the actions of this president.
5. Congress never authorized discrimination based on national origin. Mr. McCarthy also notes that the president’s order draws its list of seven countries from a list drawn up by Congress and the president in 2015. That law required that temporary visitors who are nationals of these countries be interviewed and receive a visa before travelling to the United States.
This is certainly discriminatory, but this provision did not create a new rule that, as Mr. McCarthy infers, “expressly authorized discrimination on the basis of national origin when concerns over international terrorism are involved.” This law dealt with temporary visitor visas, so it had no impact whatsoever on the bar on discrimination in the issuance of permanent immigrant visas for people from these countries. Just to reiterate, the bar on national origin discrimination only applies to immigrants--people who are coming to the United States for permanent residency.
His confusion over this issue reappears when he discusses President Carter’s visa restrictions on temporary visas for Iranian nationals, and in any case, President Carter’s order is simply not comparable to President Trump’s. Mr. McCarthy claims that President Carter imposed the restrictions based on “terrorism.” This is just not true. “Militants occupying the embassy had been using a visa machine there to issue and validate visas,” reported the New York Times in 1980. “Henceforth no Iranians would be allowed to enter this country unless they had their visas revalidated by the State Department in consular offices.” This is nothing even remotely similar to what President Trump is doing: creating a presumptive ban on all immigrants based on their nationality even when there was no doubt about the legitimacy of their visas.
6. President Trump cannot ignore court precedent based on national security. Mr. McCarthy waves off the D.C. Court of Appeals opinion in U.S. Department of State v. Legal Assistance for Vietnamese Asylum Seekers that enforced the ban on national origin discrimination by claiming that it “was unrelated to national security, and thus problematic.” But the 1952 act only requires that the entries be “detrimental.” There is no requirement that they be a “threat.” Either this power is unfettered by the 1965 amendments or it is not. Mr. McCarthy wants to have it both ways.
Moreover, the government used this exact defense in the Vietnamese case. “This case involves the power to exclude aliens from the Nation, a power that is integrally related to the conduct of foreign relations,” it wrote. The discriminatory policy was adopted, it said, “for important reasons of foreign policy.” Yet the D.C. Court of Appeals rejected the argument. “The appellees' proffered statutory interpretation,” it found, “leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render 8 U.S.C. § 1152(a) a virtual nullity.”
Of course, this makes hash of Mr. McCarthy’s assertion that the president has no limits on his ability to restrict or regulate immigration.
President Trump signed an executive order yesterday that would ban all Syrian refugees and almost all refugees from all countries from entering the United States for six months, while cutting the overall annual limit for refugees in half and banning for at least 90 days all immigration from seven majority Muslim countries. It implies that this ban could continue indefinitely for certain countries. These policies will not improve national security and will undermine America’s efforts to combat Islamic extremism and terrorism around the world.
1) The order violates the law. Under the Immigration Act of 1965, the president may not refuse to give visas to immigrants coming to live in the United States permanently due to their nationality. The provision is unequivocal in stating that no person may “be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” While this does not apply to temporary visitors or refugees, I have previously explained in detail why the president cannot legally enforce this order against immigrants who are sponsored by employers or family members in the United States.
2) Refugees and immigrants from Muslim-majority countries are not a serious threat to Americans. The order would ban all people entering the United States from Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen, and yet no terrorist from these places has carried out a lethal attack in the United States. Indeed, no Libyans or Syrians have even been convicted for planning such an attack. Moreover, the likelihood of being killed by any refugee from any country is just 1 in 3.64 billion a year. This discrimination is arbitrary and cannot be rationally justified based on a assessment of the risk. It is worth remembering that German Jews were turned away on a similar pretense that they could be Nazi spies—only to be killed in death camps.
3) The order aids the Islamic State. ISIS has said that it wishes to “compel the Crusaders to actively destroy the gray zone themselves,” forcing Western Muslims to “either apostatize… or [emigrate] to the Islamic State and thereby escape persecution from the crusader governments and citizens.” They want this overreaction. The only thing keeping ISIS from imploding are its new recruits which makes winning the propaganda war critical. Accepting refugees deprives ISIS of human resources. The Caliphate’s main source of income is the people it extorts. One refugee told the Times. “ISIS would not let us leave. They said, ‘You are going to the infidels.’” What could be more important than making the “infidels” more popular than ISIS?
4) Muslim immigrants to the U.S. are reforming Islam. American Muslims are 81 percent first or second generation Americans who came from among the most socially illiberal countries in the world. Yet, they comprise the most socially liberal and tolerant Muslim in the world. In fact, during the most recent seven years when Muslim immigration was at its highest level, America’s Muslims grew increasingly socially tolerant of other religions and homosexuality. U.S. Muslim immigrants are spreading goodwill about America’s freedoms around the world. “When I talk to my family they ask, ‘How is the treatment of Americans,’ and I say ‘it’s wonderful,’” one Syrian refugee explained. U.S. immigration is creating a cohort of liberal Muslims who can confront radicalism worldwide.
5) America’s tradition of accepting refugees should be defended. Since World War II, the United States has accepted millions of refugees fleeing communism and totalitarianism around the world. The Roosevelt administration’s rejection of Jews fleeing the Holocaust was one of the more shameful acts of any American president. Rather than return to such a policy targeted at a new group of persecuted people, the United States should continue to accept humanitarian immigration, not because refugees can improve local economies—though they can—and not because they can provide tangible intelligence against ISIS—though they do—but because getting out of the way and allowing people to escape violence is the bare minimum of moral decency.
America may have no moral duty to put out fires around the world, but it does have a moral duty not to block the fire exits.
Concerns about Muslim assimilation made news again this week when Donald Trump erroneously claimed that U.S. Muslim neighbors failed to report the San Bernardino shooters. But this persistent idea that U.S. Muslims are not assimilating could not be more inaccurate. In fact, U.S. Muslims—81 percent of whom are immigrants or children of immigrants—are the most socially liberal and religiously tolerant in the world and becoming more so with each passing year.
U.S. Muslims Are Adopting Americans’ Liberal Social and Religious Views
More than 80 percent of Muslim Americans are immigrants or the children of immigrants, according to the Pew Research Center’s 2014 survey. The large majority of these are immigrants who arrived since 1990. Figure 1 provides the countries of origin for U.S. Muslim immigrants. The fact that Muslim Americans are dominated by immigrants could lead to the conclusion that the views of Muslim Americans will reflect the views of Muslims worldwide. But this is not the case. They are rapidly adopting American social views and liberalizing their religious views to accommodate.
Figure 1: Countries of Origin for Muslim Immigrants (2014)
Source: Pew (2011)
As an example, the vast majority of Muslims around the world are fiercely opposed to homosexuality. Worldwide, the average country-level support across 39 countries is just 5 percent with 80 percent opposed. Yet as Figure 2 shows, in the United States in 2011, 45 percent of U.S. Muslims considered homosexuality morally acceptable—the highest in the world—compared to 47 percent who did not. While lower than the U.S. public generally, opposition to homosexuality fell 14 percentage points from 2007 to 2014, while acceptance gained 18 percentage points—a 32-point swing in less than a decade.
Figure 2: Is homosexuality morally acceptable or morally wrong?
Sources: Gallup (2008)—Germany, France, U.K.; Pew (2007, 2011, 2014)—United States; Pew (2013)—all other countries. Note that at least 90 percent of Muslims in all countries not listed considered homosexuality immoral (Azerbaijan, Kazakhstan, Indonesia, Malaysia, Thailand, Egypt, Pakistan, Jordan, Lebanon, Tunisia, Cameroon, Chad, Ethiopia, Ghana, Kenya, Liberia, Mali, Niger, Nigeria, Senegal, and Tanzania).
Another signal of their more tolerant attitudes is that a majority of Muslim Americans accept other faiths as spiritual equals. Pew Research Center found that U.S. Muslims in 2011 were unique among Muslims around the world in that they rejected the idea that Islam is the only faith leading to eternal life, instead believing that many other religions can also do so. As Figure 3 shows, a majority—56 percent—adopted the more liberal view, compared to just a country-level average of 20 percent for Muslims elsewhere.
Figure 3: Which statement comes closest to your view: Islam is the one, true faith leading to eternal life, or many religions can lead to eternal life?
Source: Pew (2011)—the United States; Pew (2013)—all others. Note that less than 20 percent of the Muslims in each of the countries not shown agreed that other religions could lead to eternal life. Those countries are: Tajikistan, Turkey, Uzbekistan, Indonesia, Malaysia, Thailand, Bangladesh, Pakistan, Egypt, Iraq, Jordan, Morocco, Palestine, Djibouti, Ethiopia, Ghana, DR Congo, Mali, Niger, and Nigeria
This pluralistic faith could be a consequence of the fact that in the United States, only 48 percent of Muslim Americans say that “all or most” of their friends are other Muslims, compared to 95 percent globally. Given their much more ready acceptance of other religions and their high level of interaction between members of other faiths, it is also not very surprising that Muslim Americans appear to be the most permissive of inter-faith marriages.
Unfortunately, Pew asked slightly different questions of Muslims in the United States than internationally, but 62 percent of U.S. Muslims said that it would be “OK” to marry a non-Muslim in 2007 (Figure 4). By comparison, the country-level average elsewhere around the world shows that only 20 percent of Muslims in 2011 would be comfortable with a child’s marriage to a Christian. Granting that people may be more likely to be “uncomfortable” with their own child’s activities than the same activity in the abstract, this is still a stark difference in attitudes. It’s also worth noting that 16 percent of U.S. Muslims were already living with a spouse or partner of a different religion in 2007.
Figure 4: Non-U.S. Question: How comfortable would you be if a child of yours someday married a Christian? U.S. Question: Do you personally think it is OK for a Muslim to marry someone who is not a Muslim?
Source: Pew (2011); Pew (2007). Note that less than 20 percent of the Muslims in each of the countries not shown felt comfortable with inter-faith marriages. Those countries are:Djibouti, Kenya, Kyrgyzstan, Ethiopia, Senegal, Bosnia-Herz., Morocco, Tunisia, Malaysia, Uzbekistan, Bangladesh, Tajikistan, Palestine, Iraq, Azerbaijan, Pakistan, Indonesia, Egypt, and Jordan.
Another interesting example of the modernizing trend in the United States is the extent to which Muslims in the United States are losing cultural expressions of their faith common in other countries. In a smaller yet telling Pew survey of Muslims in 8 countries, Muslim Americans were the most likely to never wear a hijab and the least likely to always or usually wear one—just 41 percent of U.S. Muslims do so compared to 61 percent internationally (Figure 5).
Figure 5: When you are out in public, how often do you wear the headcover or hijab?
Source: Pew (2011)
The willingness of Muslim Americans to depart from the strict requirements in Islamic law may stem from their more liberal views on scriptural interpretation. Muslim Americans are half as likely as other Muslims to believe that the Quran should be taken literally. A plurality in the United States favors not taking the Quran literally—43 percent to 42 percent—compared to the strong majority in other countries that favors literal interpretation—79 percent to 17 percent. As Figure 6 shows, Muslim Americans’ views are also trending strongly against the literal view—dropping from a net 17 percentage point in favor to a net 1 percentage point against from 2007 to 2014.
Figure 6: Is the Quran to be taken literally, word for word?
This acceptance of liberal values and rejection of a strict interpretation of the Quran is reflected in the share of Muslim Americans who oppose using the Quran as a source of legislation in the United States. In 2006, Gallup found support for using Sharia as at least one source for the law at a worldwide country-level average of 79 percent (Figure 7). The Institute for Social Policy and Understanding asked a very similar question of U.S. Muslims in 2016 and found that 55 percent opposed using “their religion” as even one source out of many for U.S. laws.
Figure 7: Should Sharia/your religion be a source of legislation?
Support for Terrorism and Extremism Much Lower among U.S. Muslims
Another sign that U.S. Muslims are adopting American social norms is the extent to which they reject radical ideological groups, like al Qaeda and the Islamic State. Pew also conducted a survey of Muslims in 12 countries that asked about their views on al Qaeda. Of all the Muslims surveyed, only Lebanese had a more negative view of the Sunni terrorist group al Qaeda than U.S. Muslims (Figure 8). Just 5 percent of Muslim Americans had a favorable view of the group, compared to 81 percent who did not. The opposition was more pronounced among U.S. Muslim immigrants—just 2 percent saw al Qaeda favorably compared to 83 percent who didn’t. Both of which are within the poll's margin of error (+-5%).
Figure 8: Do you have a favorable or unfavorable view of al Qaeda?
U.S. Muslims also more strongly oppose violence in the name of Islam. Pew asked Muslims in 23 countries how often suicide bombing “and other forms of violence against civilian targets in order to defend Islam from its enemies” is justified. As Figure 9 shows, Muslims around the world are overwhelmingly opposed to this type of violence. At a country-level, 67 percent of Muslims oppose these attacks in all cases, compared to 27 percent who believe they can be justified at times (“rarely, sometimes, often”). In the United States, Muslims oppose all such attacks to defend Islam 81 percent to 13 percent. Among Muslim immigrants, opposition is more pronounced—82 percent to 10 percent.
Figure 9: How often do you think suicide bombing and other forms of violence against civilian targets are justified in order to defend Islam from its enemies?
In 2011, Gallup also conducted a similar poll that found a low level of support for violence against civilians among U.S. Muslims compared to countries in the Middle East and North Africa (Figure 10). They opposed such attacks in all cases 89 percent to 11 percent, compared to 85 percent to 13 percent in the other countries. They also had significantly lower levels of support for violence against civilians than U.S. and Canadian public generally, who opposed it in all cases just 77 percent to 22 percent.
Figure 10: Do you think that for an individual person or a small group of persons to target and kill civilians is never justified?
These differences between Muslim Americans and other Muslims around the world influence how U.S. Muslims see themselves in the world. Among all religious groups in the United States, Muslim Americans are the least likely to identify strongly with members of their religion internationally. Just 37 percent do so, despite the fact that Muslim Americans are the least likely to be U.S. citizens. As seen in Figure 11, they also had the largest gap between those who identify strongly with their religion and those who identify with their co-religionists around the world. They were also more likely to identify strongly with their adopted U.S. nationality than with their religion generally.
Figure 11: Do you identify strongly with those worldwide who share your religious identity?
Sources: Gallup (2011)
Explanations for Liberal Views and Policy Implications
This survey of Muslim assimilation demonstrates three important facts in the debate over Muslim immigration: first, that Muslim Americans have taken markedly more liberal views on social, religious, and political subjects than Muslims elsewhere; second, that Muslim Americans are quickly adopting the views of other Americans; third, that Muslim immigrants in the United States are less likely to support al Qaeda, violence against civilians, and aspects of strict Islamic law than native-born Muslim Americans.
There are two possibilities for the divergence in views between Muslims in the United States and those elsewhere: either immigrants who choose to come to the United States have views most similar to Americans, or immigrants who immigrate to the United States quickly adopt the norms of their new home. To put the question another way, either Muslim immigrants to the United States are unique or the United States is unique in its ability to integrate immigrants.
As has already been seen, the United States appears to be quickly changing the views of immigrants after they arrive, but this phenomenon does not rule out the possibility that Muslim immigrants to the United States started with more liberal views to begin with. One possible argument against this view is that the top origin countries (Figure 1) for U.S. Muslims are among the least liberal in the world.
If the United States does have a liberalizing effect on the views and practices of fundamentalist Muslims, then large-scale immigration of Muslims could be a viable way to increase the influence of liberal Muslims in the world.
Since Germany first accepted more than a million asylees into its country, the successes and failures of the decision were bound to reverberate around the world. Yet despite this openness at the borders, Germany remained stubbornly closed inwardly, delaying the integration of the people it chose to accept. Most importantly, it retained employment restrictions that prevent asylum seekers from obtaining the jobs they need to survive. Fortunately, America has a much better system with much greater success.
In 2015, Germany waited the longest of any country in Europe to restrict the flow of asylum seekers from the Middle East. Yet once they arrived, the asylees who immediately sought work in Europe’s largest economy were greeted by bureaucracy. The law initially forbade asylees from seeking work for 9 months after their arrival, but was reduced to 3 months in November 2014. Then, inexplicably, at the height of the inflows, the German government banned working if the asylee was forced to stay a reception center, which could be up to 6 months.
After the initial waiting period, asylees did not receive unrestricted employment authorization. Instead, they would have to find a “concrete” job offer—i.e. a firm must promise to hire them if the permit is granted—then apply for authorization. Even then, companies can only hire them during the first 15 months if the jobs are offered first to EU residents, and the federal labor department agrees that no one was willing to take. They also set asylee wages, which can price out low-skilled workers.
The hoops don’t end there. Asylees still have to get the approval of the immigration office at the municipal level. Under the law, it would take four years before they could compete equally with EU citizens.
On top of all these refugee-specific regulations, skilled workers are then tasked with proving that they can work in certain occupations. In order to obtain an occupational license, documentary proof of training—proof that’s often buried under bombed-out homes in Syria—is required. Some states in Germany allow asylees to demonstrate their skills in order to receive licensing, but others do not. "I am a dentist and could work, but what am I supposed to do? I am not allowed to work here!” one asylee told DW News.
Low-skilled immigrants haven’t avoided being targeted either. Germany introduced its first ever minimum wage in 2015—which disproportionately hits lower skilled migrants—and a study by the German government in August 2016 found that it had already cost 60,000 jobs.
The Cologne Institute for Economic Research in Germany produced a report in September 2015, calling for loosening the labor regulations, but it wasn’t until July 2016 that Germany passed a new law that suspended for three years the requirement that firms must offer jobs to EU residents first. Yet even so, the suspension will only apply in areas with low unemployment, and states and localities can still require discrimination against the asylee job seekers. They can also tell asylees where they must live—which could prevent them from following economic demand.
It is no surprise that this system has produced extremely high unemployment among the asylees in Germany—now almost a year after the bulk of the arrivals. Refugees generally in Germany show very slow economic integration, with less than half working after 5 years. Naturally, Syrians face many hurdles beyond bureaucracy in finding work, especially language and skill acquisition. But it’s clear that the restrictions play an important role in preventing employment.
“I’ve been waiting one year and three months for permission to work, everything is slow here. I was expecting it to go a little bit faster,” one Syrian engineer told the Financial Times, saying that his problem was “red tape, not language.” Robert Barr, co-founder of Jobs4Refugees, agreed with this assessment, telling the paper that the bureaucracy was “definitely too complicated,” and that “the sheer amount of paper work and the complexity of it is even difficult for Germans to understand.”
By comparison, the United States rapidly incorporates refugees into the labor market. U.S.-bound refugees have no restraints on employment and can compete equally with U.S. citizens, except that certain states can limit occupational licenses for noncitizens and refugees for 1 year, although they may have difficulty getting recognition of their credentials even after that. They also face a crop of new state-level minimum wage laws that can make low-skilled employment scarcer.
Figure: Employment Rates in United States and Germany for Refugees (Ages 16+) By Years Since Arrival
Despite these restrictions, after just one year, the majority of U.S. refugees were participating in the labor force, and after just three years, a majority had has jobs. As Figure 1 demonstrates, they significantly outperform refugees in Germany in this regard. The employment rate after 5 years was much higher for male refugees than refugee women in both countries, which makes the overall better U.S. performance all the more surprising, given that Germany’s asylees are overwhelmingly young men while the United States flow is evenly divided.
In the long-term, the U.S. model proves successful. During the 2009 to 2011 period, all refugees in the United States were more likely to be employed than the overall population, according to a 2015 study by the Migration Policy Institute. Two-thirds of all refugee men were employed compared to only 60 percent for all U.S. men. Refugee women had the same employment rates as all U.S. women.
U.S. policymakers cannot base their estimates of how refugee flows will impact the labor market on the situation in Germany. Labor market institutions in the United States are better equipped to handle an influx of new workers. While Germany is attempting to improve its laws to better integrate asylees, much work remains. The United States can continue to accept and integrate refugees with the knowledge that we have the experience and markets to handle the flow.