On January 27th, President Trump issued an Executive Order on immigration that brings us back to the days of overtly racist and discriminatory policies. In 1965, Congress ended the national-origins quota system that had been in place since the 1920s because it was clearly discriminatory, favoring northern Europeans and against eastern and southern Europeans, Africans and Asians. The Hart-Cellar Act was heralded as a complement to the Civil Rights legislation enacted just two months earlier. On signing the landmark immigration act, President Lyndon Johnson stated,
“This [old] system violates the basic principle of American democracy, the principle that values and rewards each man on the basis of his merit as a man. It has been un-American in the highest sense, because it has been untrue to the faith that brought thousands to these shores even before we were a country.”
We can expect that our domestic civil rights will go right out the window with the end of non-discriminatory immigration policies. Trump’s immigration orders end all refugee entries for four months and ban all citizens from seven Muslim-majority countries (Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen) from entering the country.
Hours after signing the order, scores of refugees with valid visas and green-card-holding permanent residents from those countries were detained at US airports or prevented from boarding airplanes to the US. Thousands of protestors rushed to JFK to protest. The outright ban on 134 million people from entering the US echoes the blanket ban on Chinese from the late-nineteenth century, which was expanded to include other Asian countries in 1917 in what was called the Asiatic Barred Zone. The only difference now is that Trump’s ban is more draconian than the earlier racist legislation that only targeted laborers, and had exemptions for merchants, students and diplomats. Trump’s only exemption is for diplomats.
The Trump administration has argued that it has authority under a 1952 law to “suspend the entry” of “any class of aliens” that are detrimental to the interest of the United States. However, in 1965 Congress explicitly limited the president’s powers, stating clearly that no person can 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.” Trump may try to contend that banning entry and issuing a visa are two different issues, but a fifth grader can see through this ruse.
Trump’s Order creates an explicit religious test for immigration by prioritizing Christian over Muslim applicants for refugee status. Unfortunately, the 1965 Act did not ban religious discrimination, but the US Constitution does. Harvard Law Professor Laurence Tribe told MSNBC, “I believe Trump’s unprecedented proposal would violate our Constitution, both the First Amendment’s Religion Clauses and the equality dimension of the Due Process Clause of the Fifth Amendment.” Tribe further suggested that Trump’s ban would violate the No Religious Test Clause of Article VI.
Lawyers will challenge the president on all of these issues, and they may prevail in the courts. After all, the courts blocked Obama from granting reprieve for deportation for his DAPA program that was designed to temporarily shield parents of undocumented childhood arrivals from deportation proceedings. The courts argued that such a blanket protection overstepped the executive authority of the president. If Obama’s protection of a few million undocumented people living in our country is overly broad, then surely the blanket ban on 134 million people from seven different countries is outrageously so.
In the days following the election, students and faculty at colleges and universities throughout the country mobilized to protect the DACA students who were being threatened by Trump. More than 125 petitions gathered over 100,000 signatures and scores of university presidents either declared their schools Sanctuary Campuses or said they would not cooperate with federal immigration authorities unless compelled to do so by a legal order. Although Trump promised to end DACA on Day One, so far the administration has been mum on the question. They may choose just to let DACA lapse and not renew it, which would be a less public way of ending the program, but clearly the massive protests by students and faculty had an impact.
Instead of focusing on ending DACA, Trump promised to target 2-3 million “criminal aliens” first. However, Trump’s executive orders have drastically expanded the definition of criminal alien to anyone who has “committed acts that constitute a chargeable criminal offense,” meaning anyone who is believed to have broken any type of law whether that person has been charged with a crime or not.
Trump’s priorities for deportation also includes those who committed “fraud or willful misrepresentation in connection with any official matter or application before a governmental agency,” a catch-all category that targets people who have used a false Social Security number to obtain a job. And finally, those who have received a deportation order but have not left are also a priority for Trump’s regime. This new expanded definition of “criminal alien” includes virtually all of the 11 million undocumented, with the significant exception of the 750,000 DACA students.
The #SanctuaryCampus and Sanctuary City movement managed to capture the hearts and minds of millions, but the question is whether such protections can be effective given Trump’s current priorities. In Portland, a sanctuary city in a sanctuary state, ICE has been trolling the DUI diversion program in the Multnomah County courthouse, arresting immigrants. By turning our courts into de facto internment camps for immigrants, we will dissuade immigrants from showing up to court as witnesses or appearing there if they have been charged with minor infractions. In Portland, Mayor Ted Wheeler, who runs the Police Department, and District Attorney Rod Underhill share primary responsibility for deportations through the arrest and conviction of undocumented people and lawful permanent residents for low-level crimes. If our sanctuary cities do not do a better job of preventing the hijacking of our local courts, then the sanctuary will have become a meaningless designation that makes ourselves feel good while leaving immigrants vulnerable.
Mass incarceration began with “broken windows policing” that targets low-level offenders and puts them in jail. In this new era of mass deportation, the link between broken windows policing and immigration detention and deportation could not be any more clear. Fighting for immigrants rights requires us to end such policies of over-policing that brings undocumented immigrants into the courts and jails where they are vulnerable to ICE raids.
Immigrant rights activists cannot simply tout the Americanness of Dreamers and declare sanctuaries. They must also fight to end the carceral state by demanding that their mayors and city councilors order their local police to stop arresting people for low-level crimes.
People often ask what would you have done when millions of Mexicans were forced out of the US in the 1930s and 1950s or when over 100,000 Japanese and Japanese Americans were put into internment camps during WWII. Today, you have the moral obligation to answer the call. Nothing less than massive civil disobedience in the face of Trump’s racist immigration policies will do.