note: I have written this commentary to better reach a broader audience concerning issues involving President Trump’s January 27, 2017 Executive Order “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“Immigration”). I have been asked by many concerned students, individuals in the community, organizations and media, particularly in immigrant communities, to comment on the range of potential legal and social implications of the order.
I have given an extended interview on Hiber Radio (for broadcast this week) on the order and expect to give more in the coming weeks as there is substantial public interest in the outcome of the court proceedings involving the order.
There is undoubtedly grave concern among many Americans and immigrants that Trump’s Executive Order is so unprecedented and anomalous that it poses an extreme existential threat to life, liberty and livelihood.
I am especially concerned that much of the anxiety, dread and prevailing sense of helplessness and powerlessness among many stems from lack of basic knowledge about American history and constitutional process. Indeed, much of the anxiety and panic is caused by overblown rumors, gossip, hearsay and fabricated tales of bad things things that have supposedly happened to people.
The fact of the matter is that what Trump has done in the name of “protecting the nation from foreign terrorists” is nothing new in American history or politics. It is only the latest chapter in a long train of attempts and efforts to keep out “undesirable aliens” dating back to colonial times three centuries ago.
The saying that history repeats itself rings true for American history just as well.
I hope to achieve three things in this commentary: 1) allays fears in immigrant communities of imminent collapse of the constitutional and legal process by presidential executive fiat resulting in mass arrests, internment, detentions and deportations; 2) assure immigrant communities that despite all its flaws and imperfections America is still a government of laws and not of one man, and the rule of law and the supremacy of the U.S. Constitution remains intact, and 3) provide basic civic education and encourage my readership who have followed my uninterrupted weekly commentaries for the past 11 years to develop “civic literacy” in U.S. history, Constitution and institutions.
Is a hard rain gonna fall under Trump?
Bob Dylan, the 2016 Nobel Laureate for literature and iconic American songwriter, singer and writer, lyrically warned a previous generation in 1962, “A Hard Rain is A-Gonna Fall”:
… I’ve walked and I’ve crawled on six crooked highways
I’ve stepped in the middle of seven sad forests
I’ve been out in front of a dozen dead oceans
I’ve been ten thousand miles in the mouth of a graveyard
And it’s a hard, and it’s a hard, it’s a hard, and it’s a hard
And it’s a hard rain’s a-gonna fall…
Today, many Americans and immigrants feel a hard rain is gonna fall under a Trump Administration.
Those Americans who voted for Hillary Clinton (65,844,954 (48.2%) compared to the 62,979,879 (46.1% for Trump) feel they will be crawling crooked highways and walking through sad forests for four years just to land on the shores of dead oceans. The New York Times declared Trump presented a “threat to the Constitution”.
The concerns about President Donald Trump are very real but over-exaggerated. I believe fear grows where ignorance flows.
I believe many Americans and immigrants are afraid and anxiety-ridden about Trump’s executive order because they believe what Trump is doing today is something new, unheard-of, unparalleled and unprecedented in American history, and that he is invincible and above the law. They fear Trump can change the destiny of the country. They fear Trump has the power of life and death over them. They fear Trump can order them into mass internment and detention by the stroke of the pen.
Such exaggerated fears are rooted in a basic lack of understanding of how American institutions function. Even the President of the United States is subservient to the Constitution of the United States. No man is above the law in America. Certainly, America is not a tin-pot dictatorship even though the Philadelphia Inquirer in its editorial declared: “From spreading bald lies to suppressing basic facts and information, the early days of the Trump administration are suggestive of a tin-pot dictatorship.” In distinguishing between an empire and a republic, one of the leading Founding Fathers and second President of the United States, James Adams explained the American “Republic to be a government of laws, and not of men.” That remains true for President Trump, the forty-fifth President of the United States.
Immigration to North America has been fraught with problems from the inception of the British colonies in the late 15th century.
King James of England took possession of parts of North America by royal prerogative and designated the territories “crown colony” or “charter colony” of Britain. James’ expropriation of land from the Natives in North America was the ultimate land-grab. By royal order (“Charter”), James declared sole ownership of the “territories in America either appartaining unto us or which are not nowe actuallie possessed by anie Christian prince or people…”
Simply stated, King James grabbed the land from Native Peoples in North America by issuing an edict and by claiming that he was justifed in doing so because the Natives were “savages” who were not “Christians” nor under the rule of any “Christian prince”. James pontificated that the English settlements were good for the souls of the Native peoples of North America as they would “propagate [the] Christian religion to suche people as yet live in darkenesse and miserable ignorance of the true knoweledge and worshippe of God and may in tyme bring the infidels and salvages living in those parts to humane civilitie and to a setled and quiet govermente…” Simply stated, the English settlers would serve to “civilize” and save the souls of the Native “savages and infidels” from eternal damnation.
The British novelist and poet Rudyard Kipling in 1899 writ large the same sentiment in verse lamenting the “White Man’s burden” and urging his compatriots to “send their sons to exile/ to serve your captives’ need/ Your new-caught, sullen peoples,/ Half devil and half child/…”
Thomas Jefferson, one of the leading American Founding Fathers, third U.S. President and principal author of the 1776 Declaration of Independence explained how America became a land of immigrants, the importance of the liberty of movement and how the immigrants escaping religious and political persecution built settlements in the North America:
[O]ur ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right, which nature has given to all men, of departing from the country in which chance, not choice, has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as, to them, shall seem most likely to promote public happiness.
When the people of France gifted the Statute of Liberty to the people of the United States in 1886, they affirmed their enduring commitment to freedom, liberty of movement and amity. For over 130 years the Statute has been the iconic welcoming sight to immigrants arriving in the U.S. from the world over. In 1903, Emma Lazarus’ inspirational poem “The New Colossus” was engraved on a bronze plaque and mounted inside the pedestal’s lower level:
… Give me your tired, your poor,/ Your huddled masses yearning to breathe free,/ The wretched refuse of your teeming shore./ Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!/…
President Trump today says:
It’s our right as a sovereign nation to choose immigrants that we think are the likeliest to thrive and flourish and love us… I do business with the Mexican people, but you have people coming through the border that are from all over… And they’re bad. They’re really bad. You have people coming in, and I’m not just saying Mexicans, I’m talking about people that are from all over that are killers and rapists and they’re coming into this country… There will be no amnesty… Anyone who is in the United States illegally is subject to deportation. Mexico will pay for the wall. 100%… They don’t know it yet, but they’re going to pay for the wall. Within ICE I’m going to create a new special deportation task force…
But xenophobia, discrimination, prejudice and unfairness towards “undesirable aliens” and vulnerable groups in society runs deep in the American psyche and history; and by no means has it been limited to excluding and persecuting the “sullen peoples, half devil and half child” seeking to enter America.
Ironically, the English settlers who arrived on the shores of the North American continent at the end of the 15th century forcibly settled on lands occupied by Native inhabitants who spoke hundreds of different languages and administered themselves as nations. From the establishment of the first settlement as a “fort” in the Jamestown Colony of Virginia in 1607, the colonists made military and other efforts to displace Native populations and seize their lands. In 1622, the Native populations near the Jamestown colony rose up in rebellion against the ceaseless colonist encroachments on their land and killed a large number of them. The colonists responded fiercely virtually wiping out the area’s Native population. By 1758, the British colonists had established the first reservation in New Jersey for Native Americans.
In 1830, Congress passed the Indian Removal Act which resulted in the forcible removal and displacement of the Cherokee people from their lands east of the Mississippi River and put them on the long march into an area in present-day Oklahoma. The Cherokee people call the long march, the unspeakable suffering and deaths of some four thousand of their people the “Trail of Tears”. Various historians have made the controversial claim that the systematic and planned “reduction of the North American Indian population from an estimated 12 million in 1500 to barely 237,000 in 1900 represents a ‘vast genocide . . . , the most sustained on record.”
The ultimate “illegal immigration” into North America was the forced migration of African peoples during the transatlantic slave trade. The so-called Middle Passage forcibly transported at least 2 million Africans to America under the most inhuman conditions at a mortality of 10 to 20 percent. The African captives spent months locked in the bellies of stenchy slave ships only to be delivered to a life of lifetime bondage, slavery and misery.
In the British colonies in North America, the objects of abuse and persecution included peoples from Europe as well. The early British colonial settlers had a decidedly negative attitude towards Irish immigrants and enacted laws barring their entry into the North American. In 1704, Maryland imposed a tax of twenty shillings on Irish servants “to prevent the Importing of too great a number of Irish Papists into this Province.” South Carolina followed in 1716 prohibiting the immigration of people “commonly called native Irish, or persons of scandalous character or Roman Catholics.” In 1729 and 1732 respectively, Pennsylvania and Georgia passed laws taxing the importation of Irish servants.
In the early 1800s, legal and social efforts were undertaken primarily by U.S.-born white, Anglo-Saxon, Protestant (WASPs) males to keep out Irish and other immigrants. The WASPs perceived a threat from the waves of immigrants coming over with a diversity of strange languages, cultures, and traditions. German and Irish immigrants were particular targets of opposition and persecution principally because of their ethnicity and their Catholic religion. Ethnic and anti-Catholic riots occurred in many northern cities in the mid-1840s.
In the mid-1850s, the Native American Party (commonly known as the Know Nothing movement) comprised principally of WASPs relentlessly attacked and persecuted Irish and German immigrants. The nativist party embraced nationalism and appealed to ethnic and racial hatred and religious bigotry to persecute Irish and German immigrants. One historian observed that the “Know Nothings came out of what seemed to be a vacuum. It’s the failing Whig party and the faltering Democratic party and their inability to articulate, to the satisfaction of the great percentage of their electorate, answers to the problems that were associated with everyday life.” An interesting contrast to the rise of Trump to the presidency.
In Western United States, particularly in California, the targets of exclusion and restriction were Chinese immigrants. In the decade after the gold rush and statehood in 1850, large numbers of Chinese laborers immigrated to California. Just like the Irish and German immigrants, the Chinese were perceived as a serious threat to the economic and social order.
In 1882, Congress passed the Chinese Exclusion Act (CEA) suspending the immigration of Chinese workers for 10 years. There were those who incited fear of the “Yellow Peril/Terror”, a vast horde of yellow people taking over the West and destroying the economy and morals of communities. The CEA required every Chinese person traveling in or out of the country to carry an ID card indicating their employment status or profession. The CEA was amended in 1884 further tightening provisions on the residency, departure and re-entry of Chinese immigrants and extending the scope of the law to include ethnic Chinese regardless of their country of origin.
The CEA was made even more draconian in 1892 by the Geary Act which imposed additional burdens on Chinese immigrants, including the requirement that they must carry pass books or internal passports at all times. The penalty for failure to carry a pass book was deportation or a year of hard labor. That Geary Act and the CEA were not repealed until 1943 when Chinese immigrants were allowed to become U.S. citizens. The CEA was the first law in American history to impose broad restrictions on immigration and specifically exclude an ethnic/racial group.
The 1917 Immigration Act (also known as the Asiatic Barred Zone Act) restricted the immigration of “undesirables” from other countries, including “all idiots, imbeciles, feeble-minded persons, epileptics, insane persons, chronic alcoholics, paupers, vagrants, those with tuberculosis, and those who have any form of dangerous contagious disease, persons who are mentally or physically defective criminals, polygamists and anarchists, those who were against the organized government or those who advocated the unlawful destruction of property and those who advocated the unlawful assault of killing of any officer, prostitutes, persons likely to be a public charge….” This Act prohibited immigration of people from the “Asiatic Barred Zone” or “Any country not owned by the U.S. adjacent to the continent of Asia” including India, Afghanistan, Persia (Iran), Arabia, parts of the Ottoman Empire and Russia, Southeast Asia, and the Asian-Pacific islands. It also imposed a literacy test for admission into the U.S.
The Immigration Act of 1924 imposed a national origins quota system in which immigration visas were to be issued not to exceed two percent of the total number of people of each nationality in the United States as of the 1890 national census. The Act excluded all immigrants from Asia. The new quota calculations included large numbers of people of British descent whose families had long resided in the United States; and as a result the percentage of visas available to individuals from the British Isles and Western Europe increased significantly. This Act was primarily aimed at reducing immigration of Southern Europeans and Eastern Europeans, particularly Italians and Eastern European Jews. The Act also severely restricted immigration from Africa and banned outright the immigration of Arabs. According to the U.S. Department of State Office of the Historian, the purpose of the Act was “to preserve the ideal of American homogeneity.”
The 1924 Act had a devastating impact on Jewish immigrants fleeing fascist persecution in Europe during the 1930’s. Shortly after Hitler’s rise to power in 1933, discrimination against Jews was legalized; and within five years Jews were being rounded up for extermination. In 1939, a German ship carrying 900 Jews escaping persecution by the Third Reich were denied entry visas into the U.S. and forced to return to Europe. Despite the admission of notable Jews such as Albert Einstein, few Jewish immigrants were allowed entry into the U.S. in the 1930s.
In 1942, the U.S. established the Bracero Program to fill the labor shortage in agriculture in an agreement with Mexico to allow Mexican temporary contract laborers to work in the U.S. During the 22-year existence of the program, over 4.5 million braceros (manual laborers) worked in 24 U.S. states constituting the largest foreign worker program in U.S. history. Today under the H-2A visa system, hundreds of thousands of Mexican citizens provide services as temporary agricultural workers in the U.S.
In 1942, President Franklin D. Roosevelt signed Executive Order 9066 designating certain areas in the United States as military zones. The purported aim of the Order was the “protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities.” Though the Order did not identify any particular ethnic or racial group and generically provided that “any or all persons may be excluded”, in practice it was applied almost exclusively to intern Americans of Japanese ancestry. By 1943, more than 110,000 Japanese Americans had been forced from their homes and interned in various remote camps in the United States in custody under armed guards and behind barbed wires.
Fred Korematsu, born in Oakland, California in 1919, challenged Roosevelt’s Order in court. In a landmark decision that has not been overruled to date, the U.S. Supreme Court in Korematsu v. United States (1944) decided the Order was constitutional. The Court noted it is “not unmindful of the hardships imposed by it upon a large group of American citizens” but “hardships are part of war, and war is an aggregation of hardships. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.” In a dissent, Justice J. Murphy wrote: “It is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” Such action “goes over the very brink of constitutional power and falls into the ugly abyss of racism.”
Although the U.S. was officially at war with Italy and Nazi Germany, no Americans of Italian and German ancestry were placed in internment camps during the war. Some were classified as “enemy aliens” and placed under certain restrictions and excluded from sensitive military areas.
There is no question the various discriminatory laws enacted by Congress and even some states created hardships, turmoil, family breakups and disenfranchisement of immigrants of certain nationalities and ethnicities. But it must also be remembered that the U.S. has been a world leader in refugee resettlement and assistance over the past several decades.
The U.S. has welcomed millions of refugees and others
The U.S. has been home to millions of refugees. Since 1975, the U.S. has welcomed over 3 million refugees from all over the world. Refugees escaping persecution have been able to start afresh and build new lives in America.
The U.S. has also admitted hundreds of thousands of immigrants under the Diversity Immigrant Visa program (DV) which is a “lottery program” for receiving a United States Permanent Resident Card. The Immigration Act of 1990 which established the DV program ultimately set 50,000 immigrant visas in an annual lottery to diversify the immigrant population in the United States. The Act aimed at selecting applicants mostly from countries with low rates of immigration to the United States in the previous five years.
Trump’s immigration Executive Order
During his presidential campaign, Trump promised “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
After he became president, Trump issued an Executive Order imposing sweeping and harsh executive order on immigration. The Executive Order purports to “protect the nation from terrorist entry” and directs the “suspension of issuance of visas and other immigration benefits to nationals of countries of particular concern”, including seven predominantly Muslim countries for 90 days, imposes indefinite suspension of Syrian refugees, and caps refugee admissions at 50,000 per year. Steve Jobs, the quintessential American innovator was the biological son of an immigrant who fled to America from Syria and Lebanon to escape political violence.
The “whole story” of how immigrants from the 7 countries were included in the Executive Order is an interesting one. According to Rudy Guiliani, Trump’s “alter ego”, Trump “first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” Giuliani assembled a “whole group of other very expert lawyers on this,” including former U.S. attorney general Michael Mukasey, Rep. Mike McCaul (R-Tex.) and Rep. Peter T. King (R-N.Y.)” That’s how they came up with the Executive Order.
A variety of legal challenges has been made against the Order alleging violations of the due process and equal protection clauses of the Constitution, applicable statutes, and treaties. Among the claims is the allegation that the executive order was motivated by animus (hatred) against a particular religion.
In a Statement, Trump rejected the allegations: “The seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror. To be clear, this is not a Muslim ban, as the media is falsely reporting. There are over 40 different countries worldwide that are majority Muslim that are not affected by this order.”
The Justice Department filed an emergency motion in the Ninth Circuit Court of Appeals alleging “immediate harms [to] the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.” That motion was denied today.
At issue in the court cases are several sections of the Executive Order: Section 3 (c) which suspends of entry to the U.S of immigrants and non-immigrants from the 7 named countries; Section 5(a) which suspends the U.S. Refugee Admissions Program (USRAP) for 120 days; Section 5 (b) which prioritizes 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; Section 5 (c) which indefinitely suspends the admission of Syrian refugees into the U.S. and Section 5 (e) which authorizes Secretaries of State and Homeland Security to jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion in cases of hardship and in compliance with preexisting international agreements.
On February 3, 2017, Judge James Robart of the U.S. District Court Judge for the Western District of Washington at Seattle (a George W. Bush nominee who cleared the Senate 99-0 in his confirmation hearing) issued a nationwide Temporary Restraining Order concluding , “The States are likely to succeed on the merits of the claims that would entitle them to relief” and are likely to suffer irreparable harm in the absence of preliminary relief.” Robart said no attacks had been carried out on U.S. soil by individuals from the seven countries affected by the travel ban since that assault. For Trump’s order to be constitutional, Robart said, it had to be “based in fact, as opposed to fiction.”
As a result of the Executive Order, the State Department asserted only some 60,000 foreigners from seven-majority Muslim countries has their visas canceled. A U.S. Justice Department official put the number at 100,000.
Trump opened a twitter attack on Judge Robart declaring, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” In June 2016, candidate Trump attacked U.S. District Court Judge Gonzalo Curiel, a 20-year veteran on the court, in a case involving fraud perpetrated by Trump University, “I have a Mexican judge. He’s of Mexican heritage. He should have recused himself, not only for that, for other things.”
Trump’s contempt for the rule of law — indeed the supreme law of the land — and the independent judiciary is likely to be the principal cause of his downfall. There is no doubt that he will continue to push the envelope by bullying and vilifying judges and disrespecting the authority of the courts. It is unthinkable that federal judges will be intimidated or cower before a “so-called president” or obsequiously submit to a faux imperial presidency.
This too shall pass: The price of liberty is eternal vigilance
There is great concern that President Trump will abuse his power to issue executive orders and flaunt the constitution and violate the law. Such concerns about executive and legislative abuse have existed since the colonial days predating the Republic. There is no question that the discriminatory and xenophobic laws of the have wreaked havoc and extreme hardship on those affected, but in the end, they all passed into the ash heap of history.
The abolitionist activists Wendell Phillips Speaking to members of the Massachusetts Anti-Slavery Society warned:
Eternal vigilance is the price of liberty; power is ever stealing from the many to the few. The manna of popular liberty must be gathered each day or it is rotten. The living sap of today outgrows the dead rind of yesterday. The hand entrusted with power becomes, either from human depravity or esprit de corps, the necessary enemy of the people. Only by continued oversight can the democrat in office be prevented from hardening into a despot; only by unintermitted agitation can a people be sufficiently awake to principle not to let liberty be smothered in material prosperity… Never look, therefore, for an age when the people can be safe and quiet. At such times despotism, like a shrouding mist, steals over the mirror of freedom. (Emphasis added.)
But vigilance requires knowledge, particularly civic knowledge.
Unfortunately, the infamous Maximilien Robespierre was right when said, “The secret of freedom lies in educating people, whereas the secret of tyranny is in keeping them ignorant.”
But Benjamin Franklin had the antidote: “A nation of well-informed men who have been taught to know and prize the rights which God has given them cannot be enslaved. It is in the region of ignorance that tyranny begins.”
I advise my readers deathly afraid of what President Trump might do to heed the words of President Abe Lincoln:
It is said an Eastern monarch once charged his wise men to invent him a sentence, to be ever in view, and which should be true and appropriate in all times and situations. They presented him the words: ‘And this, too, shall pass away.’ How much it expresses! How chastening in the hour of pride! How consoling in the depths of affliction!
Bob Dylan’s lyrical message which sustained the civil rights and anti-war movements is just as applicable today as it was in 1964:
Come gather around people/ Wherever you roam
And admit that the waters/ Around you have grown
And accept it that soon/ You’ll be drenched to the bone
And if your breath to you is worth saving
Then you better start swimming or you’ll sink like a stone
For the times they are a-changing.
Today, the waters around the Land of Immigrants “have grown” and threaten to “drench us all to the bone”. We are living in a time when the people can not feel safe and be quiet. This is the time when people must gather around and defend our Constitution. The people must resist and withstand the rising tide of abuses and usurpations by a petty tyrant who imperiously flaunts the rule of the supreme law of the land.
But immigrants, refugees, “the huddled masses yearning to breathe free” and the “wretched refuse of [nations] teeming [our] shore” who fear the horrors of a Trump presidency should take heart and rejoice in the fact that the U.S. Constitution came to their rescue and defended them in their darkest hour.
(Next installment on the need for a robust civic education program to meet the challenges of times that are a-changing.)