Jennifer Gordon was interviewed by the Atlantic about the draft of an executive order regarding immigration that Donald Trump is expected to sign.
To understand the order’s scope and potential impact, I spoke with Jennifer Gordon, a Fordham University law professor who specializes in immigration law. Our conversation has been lightly edited for style and clarity.
Matt Ford: If I’m a Syrian refugee in a camp in Turkey, what should I expect if this draft executive order becomes official?
Jennifer Gordon: The current situation for Syrian refugees awaiting processing is that processing will come to a halt. There may be continued procedures within the camps, but as to admissions, the executive order stops them. There’s also a 120-day suspension of the U.S. Refugee Admissions Program for everybody, and during that period, no refugees are going to be admitted unless there’s a special exception made.
Ford: Does Trump have the legal power to do what he’s planning to do with this order under current U.S. law?
Gordon: Current U.S. law gives a president the power, in consultation with Congress, to set numbers and geographic areas for refugee admissions, so this doesn’t appear to be out of line with that.
With regard to countries for which he’s suspending the issuance of visas, there is a provision in the immigration laws that allows a president to make exactly such designations. The provision says that “whenever the president finds that the entry of any aliens, or the entry 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…their entry.”
So the question is would a challenge to that provision, particularly in the form that this was religious discrimination against majority-Muslim countries, would that stand? And that seems unlikely, given the legal standard under which the president’s immigration actions are reviewed.
Ford: What legal standard would that be?
Gordon: So there’s a doctrine called the plenary-power doctrine, it’s been around for over 125 years, and it says that in particular in terms of who has a right to enter the United States, courts essentially do not review the president and Congress’s actions for constitutionality. That’s a very unusual carve-out.
Thinking about Supreme Court decisions in this area, given that if I’m reading the executive order right, Trump has limited the exclusion to seven countries state sponsors of terrorism list and in the appropriations act, it’s not a particularly close case. If he had listed a larger set of countries and all the countries were predominantly Muslim, there might be some challenge about discrimination on the basis of religion, but again, the courts really barely look at the Constitution when it comes to decisions about who will be admitted to the country.
Ford: The draft also includes a passage that suggests the Trump administration might also seek to try to block people on the basis of—ask incoming immigrants about their views on gay rights, on gender relations, on things like that. Is that unusual, and are there any sort of precedents for that?
Gordon: Well, at the time of the Cold War, there was a great deal of attention by the government to whether somebody who was a would-be immigrant was a member of a communist party, and people were excluded based on their ideological beliefs. So in that sense, there’s a precedent. But being a member of a party is a different sort of inquiry than requiring people to adhere to a particular set of values. And values, of course, are implicit in the questions people ask. But certainly in recent years there’s no precedent for an explicit values test for entry.
Ford: What’s the significance, if any, of the order’s clause about biometric entry-exit tracking?
Gordon: Section 8 of the executive order orders the Secretary of Homeland Security to expedite the completion and implementation of a biometric entry-exit tracking system for all travelers. That may sound like a great new idea, but it was 1996 that Congress first passed and President Clinton then signed a law mandating this. Congress in total has passed seven laws mandating this. The Department of Homeland Security has not even presented a plan to Congress for its implementation. And so this really is not a new idea, and this doesn’t address the obstacles that have kept entry-exit tracking from becoming a reality.
Ford: What kinds of obstacles would those be?
Gordon: They run from the costs of such a system to customs—the customs of the United States, I mean—to airport architecture. We don’t, in the United States, as some other countries do, have a—you don’t have to pass through—you go through airport security and you get on your plane. There’s not a point where you have to hand in an exit card or report to immigration that you are departing. And countries that have such a system have built airports that have places where this takes place. U.S. airports are not built that way. So even something as concrete as airport architecture has been an obstacle to implementing such a system.