Executive Order Executioner

Donald Trump’s executive order titled “Protecting the nation from foreign terrorist entry into the united states” (full text from the BBC; the order disappeared from the White House website) resulted in a refusal of entry to the United States to holders of valid visas and US permanent residents from seven countries. As of Saturday night, a federal judge stayed a part of the order and those caught in it are now in a legal and practical limbo. They are stuck in custody without having committed any crime.

You may believe that this order makes us complicit in murder and is simply unconstitutional (an excerpt: “[designed] to prioritize 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”).

Or you may be of an opinion that it makes us safer and that we should take care of our needs before we worry about anyone else. America first.

I won’t talk about that. This piece instead looks at an exciting bit of legal work referred to by the executive order to identify the counties affected by it: section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12).

Yes, we have president Obama to thank for that law. I have already seen several outlets point it out with glee: “hey, Obama did that first,” “thank Obama,” and so on. I won’t link to them here because I find their arguments disingenuous.

This piece of legislation constitutes part of a larger bit of US Code, 8 USC 1187, titled “Visa waiver program for certain visitors.” The law provides citizens of certain countries which meet stringent criteria (such as the rate of visa refusals over

Image by Frank C. Müller. License CC.

the past two years at under 2%) to enter the United States without obtaining a visa in advance. Instead, a visitor from, say, the United Kingdom or Japan can get a visa stamped into their passport at the airport and go on to, say, visit the Statue of Liberty to learn what America is all about and what makes us great.

217(a)(12), “Designation of high risk program countries,” tweaked it. Now, if a visa waiver country citizen had in the past visited one of the designated countries, they would no longer be eligible for a waiver and would have to apply for a visa in advance just like the rest of the world. It did not block travel from the designated countries; rather, it introduced the requirement to obtain visas for, say, Belgians who traveled to Syria after 2011.

So, no, the executive order is a Trump effort entirely, and his using Obama’s legislation for part of it is like using pitchforks to execute children instead of shoveling hay.

Pointing back at the last administration to justify refusing entry to people fleeing war and torment is not only dishonest and selfish. It is evil. Want to ask Alan Kurdi?

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