David A. Martin | Vox

How to fix the crisis caused by Central American asylum seekers — humanely

2018-07-04T10:44:17-04:00

People call out words of encouragement to detainees held inside the Metropolitan Detention Center in LA after marching to decry the Trump administration immigration and its refugee policies on June 30. | David McNew/Getty Images

Surprised by vehement public reaction, President Donald Trump has decreed an end to the policy of separating arriving asylum seekers from their children. But what now? Not what will Trump do — his latest pronouncements simply up the ante on mean-spiritedness, with little clarity on a specific policy direction. But what asylum reforms should progressives push for to build a humane, workable, and sustainable program?

The policy problem is real. The flow of asylum seekers from Central America has not noticeably abated even during the administration’s imposition of cruelties. The current adjudication system has been overwhelmed — both the asylum officers in the Department of Homeland Security (DHS) and the immigration judges in the Department of Justice (DOJ). Claims in both venues, from all nationalities, have seen sharp rises over the past five years, and backlogs have mushroomed.

DHS, which was keeping up with asylum claims as recently as 2011, now has more than 300,000 pending cases. Immigration judges, whose ranks number roughly 350 at present, have an astounding backlog of 700,000 cases. The resulting picture of dysfunction provides continual fodder for anti-immigration demagogues.

Progressives need to pay close attention to that last observation, because we are in danger of overplaying the righteous reaction to the horrors of child separation. Our nation needs to remain firmly committed to the institution of political asylum. But opportunistic or abusive claims are unfortunately numerous in the current caseload, particularly among people who seek asylum after having been in the United States for a while.

And any realistic migration management regime will have to keep in its toolbox the selective detention of asylum seekers, especially in times of high influx. We need to figure out what form our detention and release system will take.

So, yes, we need to call attention to the cruelty of the Trump administration’s policies. But we also need to bring the system back under control. Control is a precondition for regaining durable public support for the institution of political asylum in a world characterized by unprecedented migration pressures. Extreme-right politicians are exaggerating the scale of illegal immigration and unwarranted asylum seeking, and not just in the US. Getting this right will help take away from the authoritarians one of their most potent rhetorical weapons: immigration alarmism.

A precedent for a solution

Fortunately, we do have a solid model for how to repair our system: Today’s overload is surprisingly similar to an administrative meltdown faced in the early 1990s. Regulatory and operational reforms in 1995 brought that asylum situation under control, while preserving due process and avoiding widespread detention. The result was 15 years of reasonably efficient operation and blessedly few hot political controversies over asylum. We can rebuild that system; doing so won’t resolve all the problems we face, but it is an indispensable ingredient.

We still face some tough questions — notably about how far our asylum system can go in protecting against private violence in Central America, including from gangs and abusive family members. As a polity with a proud history of providing refuge, we face some hard choices. But however those choices are resolved, we can and should immediately expand aid designed to reduce violence in the source countries. That would go some way toward reducing refugee flows.

How our two-track asylum system works

To understand the history of reform successes and failures, we need first a map of the rather complex structure of agencies involved in asylum processing, and of the two primary pipelines by which applications are received. Bear with me, because the differences, though technical, are important as we think about reforms.

A person already in the United States, legally or illegally, who fears persecution back in the home country, can file for asylum directly with the Department of Homeland Security. These “affirmative claims,” so-called because the person takes the initiative to file without any enforcement action pending, are initially heard in an office interview conducted by expert asylum officers, housed in eight regional offices.

Based on the completed application and a nonadversarial office interview, asylum officers can grant or deny asylum, but when asylum is denied, they have no authority to issue a removal order.

That step requires an immigration judge — a specially selected DOJ attorney, appointed by the attorney general, who conducts removal proceedings. Until 1995, there was no routine for putting unsuccessful affirmative applicants into immigration court. It was up to the district field office of the immigration agency to file charges; many offices didn’t see these cases as a priority, at a time when the enforcement system had far lower funding than today. If the district office did serve a charging document, the person could renew the asylum claim in immigration court, and the judge would decide it afresh.

Now for the second main pipeline. People who are already in removal proceedings when they first seek asylum — people apprehended after crossing the border, for instance, or picked up by DHS after a local arrest for disorderly conduct — cannot file with the asylum office. Instead, they present their applications directly to the immigration court. A successful claim there constitutes a defense to removal; hence these applications are known as “defensive claims.”

For both defensive claimants and those affirmative claimants who have renewed their claims in court, the immigration judge considers the case through a formal courtroom procedure. He or she can grant asylum, but if asylum is denied, the judge normally issues a removal order — the kind of document needed for DHS to put the applicant on a bus or plane home (though appeal opportunities exist).

Border cases, as mentioned, are almost all heard as defensive claims, assuming applicants pass an initial, speedy “credible fear” screening done by an asylum officer, which is meant to weed out clearly meritless cases. (Over the past eight years, between 15 and 30 percent have been screened out this way.)

In the 1990s the system was also overwhelmed. We brought it back under control.

Back to the dysfunction I mentioned in the early 1990s. The expert corps of asylum officers, which had been created only in 1990, was overwhelmed by an accelerating volume of asylum claims, many of them containing near-identical boilerplate stories about threats, mostly crafted by high-volume “immigration consultants.” At the time, the regulations provided that nearly all asylum applicants received authorization to work in the US shortly after filing.

That created an incentive to file a false asylum claim — as did the slim chance, during that period, that an applicant would end up in immigration court. The system’s obvious disorder and vulnerability to escalating fraud worried refugee assistance organizations, who rightly feared that Congress, then beginning to consider tough immigration enforcement bills (ultimately enacted in 1996), would impose draconian limitations on asylum unless the administration brought the situation under control.

Government agencies worked closely with NGOs to analyze the situation and draw up a balanced solution. (I worked on the design and implementation of the reforms as a consultant to the Justice Department and later as general counsel of the Immigration and Naturalization Service, a.k.a. INS.) Two key changes in asylum regulations were the result. The first made it virtually automatic that affirmative asylum claimants whose claims were rejected by the asylum officer would be placed into removal proceedings.

Under the 1995 regs, when applicants return to the asylum office a few weeks after their interview to get the result, nearly all receive either an asylum grant or a fully effective charging document placing them in removal proceedings, normally with a specific date to appear in immigration court.

Second, the reform decoupled the act of filing for asylum from work authorization. The applicant would get that benefit from the asylum officer only if granted asylum. Those applicants who failed and were referred on to immigration court would similarly have to prove their asylum claim on the merits to gain permission to work.

But as a mechanism to minimize hardship and induce timely decisions, applicants would also receive work authorization if the immigration judge did not resolve the case within six months of the initial filing. (Applicants could also request delays, for example to gather more evidence, but such a request would suspend the running of the “asylum clock” and thus extend the six-month deadline for the issuance of work authorization).

To meet that processing deadline, the Clinton administration secured funding to double the number of immigration judges, from roughly 100 to 200, and also built up the asylum officer corps. New target timetables were established, and the new system met them with few exceptions: An asylum officer decision within 60 days, and an immigration judge decision within six months from initial filing (the latter also applies to purely defensive claims).

Finally, to maximize the immediate impact, the asylum offices and immigration courts adopted a last-in, first-out scheduling policy for judging claims. That sent the signal that new bogus claims would not slip through and get work authorization under the six-month rule, simply because of case backlogs. The older filers, already carrying a work authorization card, would take lower priority.

These reforms dramatically changed the calculus of potential affirmative applicants. Weak or opportunistic filings would no longer lead to work authorization; additionally, they would mean a quick trip to immigration court and a likely removal order. People responded to the new incentives. Asylum filings with the immigration authorities declined from more than 140,000 in 1993 to a level between 27,000 and 50,000 for virtually every year from 1998 through 2013. That annual filing rate was a manageable level, logistically and politically.

Congress had been poised to crack down on asylum in 1996 as part of a general tightening of immigration laws but, impressed by the already visible reductions, rejected most of the restrictive asylum proposals and instead made the administrative changes permanent by enacting them into law.

The seeds of the current crisis were planted around 2012, in a period of budgetary contraction. Neither Congress nor the executive branch appreciated how crucial it was to reach decisions in immigration court within six months and thereby prevent work authorization to unqualified asylum applicants. That had been the system’s main (and highly effective) deterrent to opportunistic, weak, or bogus claims. Hiring slowed even as caseloads and duties expanded, including the beginnings of the Central American surge. As more and more applicants began to receive work authorization without an asylum grant on the merits, affirmative applications poured in.

With the added filings, immigration court docketing fell further behind, reaching four-year delays in some locations. Much as in 1993, it was a vicious circle. Unscrupulous “consultants” could once again guarantee work authorization to their clients based just on filing, albeit after six months, with no immigration judge hearing expected for years. In 2017, affirmative filings with the asylum office climbed back above 140,000.

A 1995-style fix today would help us mainly to deter weak affirmative asylum claims. But it would still be quite relevant to the Central American applicants reaching our borders, even though they will normally file defensively. This is because so much of the paralyzing immigration court backlog stems from the massive increase in affirmative applicant numbers over the past five years. Reducing overall intake is central to getting both tracks of the asylum process under control.

Concrete steps to fix the problems

There are four primary components in a realistic strategy to restore our asylum machinery to health. We should:

1) Rebuild the capacity for prompt asylum decisions by strategically deploying existing staff and urgently adding more. It is obvious that the system needs a major influx of new asylum officers and immigration judges. Hiring is underway and budgets are growing significantly, though not fast enough. The administration still feels a need for more dramatic immediate deterrents, apparently believing that a full catch-up to the existing caseload will take years.

But a here-and-now impact can be had by following the last-in, first-out rule that served the US so well in 1995. Rejection of new filers is more important as a deterrent than processing old cases. In fact, DHS’s asylum office returned to last-in, first-out scheduling five months ago, and affirmative claims have already dropped by 30 percent.

This excellent change will not have the needed impact until the immigration courts complete comparable revisions to their scheduling system and thus assure the six-month decision timetable. We also need to be systematic about removing unsuccessful asylum seekers with a final order.

This would return us to a system where prompt denial on the merits after a fair hearing, not cruelty to applicants, serves as the main deterrent to weak or abusive claims.

2) Make smart use of detention, including family detention as needed, plus alternative measures to avoid flight. Some critics hope that the public revulsion against child separation will lead to ending virtually all detention of asylum seekers. Others theorize that Trump’s planners adopted the separation strategy just to get courts to end constraints they now impose on family detention — because family detention would look so much kinder than separation.

Detention, however, is an inescapable part of the immigration enforcement process, at least when people first arrive at the border and claim asylum. (It’s also essential later, to facilitate or carry out removals of those with a final order.) The judicious use of detention can help reassure skittish publics in times of truly high flow of asylum seekers.

In such times, centralized facilities housing asylum seekers also hold other potential benefits, as was recognized in a 1981 report by a blue-ribbon commission on immigration reform, chaired by Father Theodore Hesburgh from the University of Notre Dame. (The Hesburgh commission issued its report a year after the Mariel boatlift from Cuba brought 125,000 asylum seekers to US shores within a few months.)

Such facilities provide a centralized location for prompt asylum interviews and court hearings. Run properly, which requires constant and committed monitoring, they also can facilitate regular and efficient ongoing access to counsel — particularly when, as is typical in a high-influx situation, most representation comes from organized pro-bono efforts.

The Trump administration has sent unclear and confusing signals about its overall plans while now trying to persuade courts to allow more room for family detention. As a matter of policy, we need to keep family detention available in the toolbox but we should not see it as an early or primary option — especially since the administration has not exhausted other methods, and the Central American flow is not as massive as officials paint it.

Critics today often argue that detention is unnecessary, pointing to high attendance rates by asylum seekers at court hearings. That observation is true, but incomplete. A well-functioning system needs released respondents to show up not just for hearings where a good thing might happen, but also for removal if they lose their asylum cases.

Good data are not available, but intermittent government snapshot reports tend to find that fewer than a sixth of the nondetained are actually removed after the issuance of a final removal order. Policymakers and advocates who want to reduce the use of detention need to attend to that latter statistic, and improve it.

To be sure, detention should not be used routinely. Alternatives to detention — such as intensive release supervision or ankle-bracelet monitoring — are generally more cost-effective. When actual detention is employed, conditions of confinement must be humane and must fully accommodate access to counsel. The Obama administration made headway toward those ends, including creating better family facilities.

3) Think hard about the realistic range of refugee protection, and be more rigorous about “internal protection alternatives.” Advocates for asylum claimants from Central America today have been working to expand the conceptual boundaries of protected refugee classes. Few of those applicants are claiming classic forms of persecution — by an oppressive government, based on the target’s race or religion or political opinion.

A great many claims today are based on domestic violence or risks from murderous criminal gangs, in the context of ineffectual government. Our whole system faces a challenge to determine whether and how such claims fit within the refugee laws and treaties.

The asylum seekers’ cases are highly sympathetic, but they also prompt concerns about figuring out workable boundary lines on any such protection commitment. Attorney General Jeff Sessions issued a highly restrictive ruling in June. It held that private crimes, including gang retribution and domestic violence, can rarely serve as the basis for a valid asylum claim. Expect a wide variety of reactions from reviewing courts over coming months and years.

But while that interpretive struggle proceeds, an immediate practical step can be taken to alleviate the dilemma. Adjudicators need to pay more systematic attention to the availability of what are known as “internal protection alternatives.” Asylum applicants who can find reasonable safety within the home country, even at the cost of moving to a new city or region — for example, because that region has a good network of domestic violence shelters — should be required to return to those regions, rather than relocate to the US.

Though this “internal protection alternatives” concept is already part of US and international law, it is understandable why many people balk at taking a firm line on it. The applicant would almost surely face lower risks in the United States than back in the home country, and real hardships can be incurred by moving to a new city where the person may not know anyone.

But that objection has to be kept in perspective. We are talking about protection in another part of one’s homeland, for someone who has already shown the resourcefulness to venture thousands of miles to a distant country, with an unfamiliar culture and language. Asylum should not be thought of as a prize for a person who has endured harm or threats, no matter how much sympathy or admiration he or she may deserve for weathering that past. Asylum is a forward-looking last-resort type of measure to shelter those who cannot find adequate protection other ways.

4) Work with other countries to address root causes and expand potential refuge elsewhere. This brings us directly to the fourth primary measure, of particular relevance to the Central American crisis. The United States should greatly expand assistance, through bilateral aid, multilateral efforts, or the funding of NGO initiatives, toward reducing the violence that sends people in search of protection.

It’s easier in theory to address root causes when the threat is private violence, since the US can expect support rather than resistance from the government. But real effectiveness on the ground demands ongoing diplomacy, implementation skill, vigilance against corruption, and, above all, consistent funding year to year.

In Central America, past US assistance has had some visible impact in helping to reduce gang violence and murder rates. The Central American Regional Security Initiative has provided more than $1.4 billion to this effort since its start in 2008. The Trump administration, with typical short-sightedness, is moving to cut this funding. And Vice President Mike Pence’s meeting with heads of state in Guatemala City last week was a giant missed opportunity. According to press accounts, he basically just badgered those governments to stop sending people.

That message would have been so much more effective toward changing conditions on the ground if it had been joined with significantly increased aid for the security initiative. We should also expand funding to enhance police responsiveness to domestic violence in Central America and to support shelter networks.

These steps are obviously worthy in their own right, helping potential victims of all sorts, not just potential migrants. But they also can reduce the felt need to migrate and generate a more extensive menu of “internal protection alternatives” to be considered by adjudicators ruling on asylum claims.

The Obama administration also had some success in working with Mexico to discourage dangerous unauthorized travel, through information campaigns and interdiction — and to open up a modest possibility that Central Americans could find refuge in Mexico itself. President Trump’s unending insults directed at our southern neighbor have torpedoed such cooperation, but a future administration should revive it.

Revulsion at the current administration’s border practices is fully deserved. And the current administration exaggerates the crisis. But in an era where tolerance for asylum protection has become a politically scarce resource, we still need realistic and determined asylum reform measures in order to restore public confidence that migration is subject to control.

Our country’s 1995 experience shows such a change is possible, while retaining a firm commitment to refugee protection. Repeating that success will require well-targeted funding and tough-minded administrative resourcefulness to succeed.

David A. Martin is professor emeritus at the University of Virginia School of Law. He served as general counsel of the Immigration and Naturalization Service, 1995 through 1997, and as principal deputy general counsel of the Department of Homeland Security, 2009 through 2010.

The Big Idea is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at thebigidea@vox.com.

Illegal immigration challenges the rule of law. But Trump is making things worse.

2017-09-21T10:35:24-04:00

Protesters against President Trump’s decision to end DACA topple a mock statue of Attorney General Jeff Sessions outside the Justice Department | Chip Somodevilla/Getty Images

Early in his September 5 press conference announcing the termination of DACA, Attorney General Jeff Sessions laid the groundwork this way:

No greater good can be done for the overall health and well-being of our Republic than preserving and strengthening the impartial rule of law. … Societies where the rule of law is subject to political whims and personal biases tend to become societies afflicted by corruption, poverty, and human suffering.

With these general propositions, I couldn’t agree more. I have served as general counsel to two federal law enforcement agencies, and I know well the firm commitment nearly all federal officers hold for those values. I know, too, that high levels of noncompliance with duly enacted law, as we have experienced for decades in the immigration arena, stand as a contradiction and a challenge to the rule of law, and to the political balance of our electoral system — a more serious challenge than many of my fellow Democrats are willing to acknowledge.

A party that once tried hard to combine humane realism toward the long-resident unauthorized population (through some form of legalization) with serious enforcement toward recent violators now rarely sounds the latter theme. (Peter Beinart keenly analyzes this change in a recent issue of the Atlantic.) Middle-of-the-road voters noticed, and Donald Trump rode that issue to a stunning upset.

But the relevant question is decidedly not how can we uproot and deport more and more people, as Sessions seems to think, but rather how, going forward, can we intelligently restore a culture of compliance. This requires thoughtful, measured steps, and a long time horizon.

In any field of regulation, a legal regime that secures observance mainly through direct coercive action by armed officers is in trouble. Healthy legal regimes rely primarily on ingrained norms of law compliance and a range of social and cultural cues that reinforce the message, so that direct enforcement is needed only on the margins.

Respect for law is not strengthened by crackdowns that strike most people as unfair

In the immigration field, we are obviously miles away from such health, and today’s polarization is rapidly making things worse. In response to various Trump crackdowns, cities have passed declarations that they are “sanctuary cities.” In turn, the federal government and some states are trying to outlaw or penalize such moves, which only stimulates local jurisdictions to invent new ways to shun cooperation with federal immigration enforcement. Both those movements — indiscriminate crackdowns and local noncooperation — are misguided.

There is no one clear path toward restoring regulatory health. The massive reduction in illegal migration flows over the past decade, due in large part to enduring demographic and economic changes in Mexico, provides a promising foundation, if policy-makers are smart about how to build on it. But in the current polarized climate, probably the single most counterproductive step the federal government could take is to focus onerous enforcement action on people whose core violations occurred when they were minors. This is vendetta, not sensible law enforcement.

If we are going to make any headway on these issues, the enforcement focus should be on recent immigration law violators — for whom there is much greater consensus about the justice of enforcement, and for whom a swift return to the country of origin sends a far more effective deterrent message than the deportation of Americanized children. (Polls suggest that most of the country recognizes this core wisdom and opposes such actions against the DREAMers.) Only by patiently widening the circle of support for measured and balanced enforcement action can we gradually find our way to a sustainable equilibrium.

If restoring the rule of law is paramount, why pardon Sheriff Joe Arpaio?

Sessions’s sanctimony about the rule of law also demands a second level of criticism, because it came a mere 11 days after the president’s pardon of Sheriff Joe Arpaio. Arpaio’s office was found in a civil suit to have systematically violated the constitutional rights of persons in Maricopa County, including through racial profiling and targeting people based on perceived immigration status (rather than evidence they had violated Arizona law). The court enjoined further violations, but the sheriff did not comply.

The president said Arpaio was being punished for “just doing his job.” This comment insults the vast majority of our nation’s law enforcement personnel, who defend our communities against crime while working to honor all persons’ rights — and who initiate discipline against colleagues who fall short of that standard.

But it gets still worse, because the pardon perniciously undercut one of the greatest and most important guarantees of the rule of law: that executive officials who misuse their governmental powers are subject to checks and balances administered by an independent judiciary. It was bad enough that Arpaio’s office violated constitutional rights. It is a far more stunning affront to the rule of law that, as the criminal court’s careful findings of fact detail, he deliberately continued a pattern of violations in the teeth of a judicial injunction with specific instructions focused on his office. Courts must have the power to punish those who defy their rulings, including through a conviction of criminal contempt of court.

The president and the attorney general seem unaware of the kinds of demons that this pardon could potentially unleash. It invites ill-motivated possessors of government power to believe they can, via pardon, get away with defying a court order simply because they have declared themselves political allies of the nation’s chief executive.

On the one hand, the Trump administration’s concept of the rule of law is so rigid and unbending that it must be applied full force to children who grew up among us because of a primary violation for which only their parents are responsible. Yet it apparently does not apply to a sheriff who took a solemn oath, on several occasions, to uphold the Constitution. The seismic shock from these actions can only accelerate the erosion of that bedrock societal foundation the attorney general pretended to honor.

A chance for a change of course?

But maybe — just maybe — this storyline could shift. Surprisingly, in the days after the DACA termination announcement, the president and congressional Democrats have reportedly reached an agreement to legislate some form of DACA in return for strengthening “border security.” Details will be crucial. We need from the Democrats sustained interest in resolute enforcement, and from this mercurial president a far more tailored enforcement focus than his AG or his base favors.

The odds are long — and even longer to get support for such an endeavor from enough Republicans in Congress. It seems unlikely that this president could preside over the necessary rebalancing. But Americans who are truly respectful of the rule of law — rather than fake-respectful — should push him and Congress in that direction.

David A. Martin is the Warner-Booker Distinguished Professor Emeritus at the University of Virginia School of Law. He served as general counsel to the Immigration and Naturalization Service from 1995 to 1998 and as principal deputy general counsel (and for a period as acting general counsel) to the Department of Homeland Security from 2009 through 2010.

Trump’s order on the deportation of undocumented residents, annotated by an immigration law expert

2017-04-17T11:18:46-04:00

A US Border Patrol officer body searches an undocumented immigrant after he illegally crossed the U.S.-Mexico border and was caught near Rio Grande City, Texas | John Moore / Getty

Annotations by David A. Martin, the Warner-Booker professor of law emeritus at the University of Virginia. He served as principal deputy general counsel of the Department of Homeland Security from January 2009 to December 2010, as general counsel of the Immigration and Naturalization Service under President Clinton, and as special assistant in the human rights bureau at the State Department under President Carter.

EXECUTIVE ORDER ENHANCING PUBLIC SAFETY IN THE INTERIOR OF THE UNITED STATES

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:

Section 1. Purpose. Interior enforcement of our Nation’s immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.

Sanctuary jurisdictions (a.) across the United States willfully violate Federal law (b.) in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.

a. This is a very casual and sweeping reference to a complicated set of federalism issues. “Sanctuary jurisdictions” is not a settled phrase and is not defined in this EO. The label has been applied, sometimes in praise and sometimes in scorn, to a wide range of actions taken by state and local law enforcement agencies (SLEAs). At one end are SLEAs that refuse nearly all support and communication with DHS about persons thought to be unlawfully present, even if the person has committed serious crimes. At the far end of the “sanctuary” spectrum are jurisdictions that won’t keep a person in detention beyond the end of their local sentence to allow for ICE to pick them up (ICE sometimes requests this, for up to 48 hours) unless ICE pays the full additional cost. In between, one finds a huge variety of practices, such as cooperating with ICE only upon either the person’s formal arraignment or actual conviction of specified serious crimes.

b. With small exceptions, no federal law mandates that states or localities directly aid ICE in enforcement. For example, an ICE detainer, which requests notification of release and up to 48 hours of additional detention to allow ICE pickup, is, by ICE’s own analysis, merely a request, which the state or local law enforcement agency may ignore. Noncooperation can certainly be critiqued as a matter of policy, but it is rarely a clear violation of federal law. And there are constitutional limits on the extent to which even a new statute could mandate that states or localities participate in federal enforcement, under the Supreme Court’s anti-commandeering doctrine. That doctrine holds that the federal government may not require states to enforce federal laws. It may, however, authorize or encourage such a role, including through federal grants to participating states or the withholding of certain funding — as long as the withholding is not so big that the courts see it as unduly coercive.

Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation.

Though international law requires states to accept return of their nationals, “tens of thousands” is probably a fair estimate of aliens released into the US because of home-state delay or refusal of return. A 2001 Supreme Court decision placed a presumptive six-month limit on detention of deportable aliens while efforts to remove them are underway.

Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.

The Supreme Court’s release rule applies even to convicted criminals. Because they have finished serving their criminal sentences by the time ICE gets them, the Court held that the commission of the crime can no longer justify extended incarceration. Further detention can be justified only by showing real progress toward removal.

Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.

A subtle slam on the large deferred action programs President Obama ordered, which generally included work authorization for the covered individuals. DACA (deferred action for undocumented individuals who came to the US before age 16, had been present five years, and had no significant criminal record), launched in 2012, remains in effect as of January 27, 2017. About 700,000 people have benefited. A broader Obama deferred-action order issued in 2014 (DAPA) would have covered perhaps 4 million others who have US citizen children, but a court stayed its implementation, and it is now clear that DAPA will never take effect.

Sec. 2. Policy. It is the policy of the executive branch to:

(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;

An odd reference. The mention of Article II, Section 3 makes sense, because that section imposes on the president a duty “to take care that the laws be faithfully executed.” But this part of Title 5 merely sets forth the broad oath that officers of the United States must take when sworn in. There is no “faithful execution” reference there.

(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;

(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;

(d) Ensure that aliens ordered removed from the United States are promptly removed; and

Removing such persons after a formal ruling against them may seem straightforward, but a high percentage, probably well over half, of the non-detained people ordered removed do not show up for deportation. This situation has existed through many presidencies, both Republican and Democratic. Part of the issue is the great delay in proceedings, often stretching over years while people develop deeper ties to their communities. And even after an immigration judge has ruled, the order may not be enforceable for years owing to appeals, first to the Board of Immigration Appeals and then to the courts. Finding the deportee after years of no direct contact is difficult and expensive investigative work, and DHS has only intermittently prioritized the use of resources for this purpose.

(e) Support victims, and the families of victims, of crimes committed by removable aliens.

Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.

Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.

Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:

These priorities replace a set of priorities adopted by then–Secretary of Homeland Security Jeh Johnson in November 2014, and they sweep far more broadly. And unlike Secretary Johnson’s, they do not set up an internal hierarchy to indicate which categories should be emphasized when resources are short — as they always are. An old canard applies: When everything is a priority, nothing is a priority. In practice, this feature gives individual agents wide latitude to follow their own preferences — or perhaps biases. (Johnson placed in Priority 1 national security threats, persons convicted of serious crimes, and those caught at the border attempting illegal entry. Priority 2 included persons guilty of serious or repeated misdemeanors, recent border crossers, and those who committed significant visa abuse. Priority 3 covered people with a final order of removal issued after 2013.)

(a) Have been convicted of any criminal offense;

(b) Have been charged with any criminal offense, where such charge has not been resolved;

Before this order issued, President-elect Trump and his staff had often emphasized that they would energize removals but would prioritize “criminal aliens.” This was met with relief in some liberal circles, thinking the result would be something like Obama’s priorities.

But the earlier statements turn out to have been head fakes. This set of priorities seems to be designed so that the administration can say they kept to that “criminal alien” statement — but Section 5 stretches that category to its furthest extremes. There is no distinction between felonies and misdemeanors, and even people charged but not yet tried get thrown into this capacious criminal pot. Indeed, there doesn’t even need to be a charge — just an immigration agent’s determination that the person committed a criminal act, even years ago — presumably including even the misdemeanor of entering the US without inspection.

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.

This section seems designed to insist on use of certain enforcement tools enacted by Congress in 1996 but never implemented. Congress authorized civil fines of up to $250 on persons apprehended while trying to enter without inspection, but provided no clear procedure for levying. INA section 275(b). The cost and delay involved in the procedure would far outweigh any added punishment or deterrence from this small penalty, and INS chose not to proceed. Another unimplemented 1996 provision is more sensible, as a means to induce compliance with final removal orders, and probably deserves this closer look. INA section 274D provides for civil fines of $500 per day for persons who willfully fail to comply with removal orders when they become final.

Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C. 1357).

Politicians wanting to show greater toughness on enforcement usually only call for more Border Patrol agents. (Trump’s other January 25 order called for adding 5,000 of them, but this ICE call doubles that.) If implemented, this provision may indicate a real commitment to invigorated internal enforcement. But like all these actions, it is subject to appropriations; see Section 18(b). Expect a real fight in Congress over so large an increase for ICE personnel. Unlike enforcement at the border, strict interior enforcement routinely steps on powerful toes, disrupting businesses or neighborhoods, suddenly taking away employees, or affecting individuals known to many influential community members.

Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.

(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).

Section 287(g) agreements authorize local officials, after training and under federal supervision, to assist with the investigation, apprehension, or detention of unauthorized aliens. The locals don’t get to issue removal orders or even formally initiate the removal process. That’s still for the feds alone.

(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.

(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

This unassuming language is important. Section 287(g) agreements historically took two forms: the task force model, which gave authority to local officers to arrest solely for immigration violations, and the more limited jail model, which gave authority for locals to act only with regard to persons already validly arrested for a local, non-immigration offense. The task force model gave rise to allegations of racial profiling and in any case did not reliably mesh with federal enforcement priorities. As a result, the Obama administration eliminated many task force agreements and emphasized the jail model. The Trump order gives DHS the authority to remain choosy in this way. The secretary would be wise to concentrate on the jail model.

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

Section 1373 is actually a rather modest federal law, which does not force broad cooperation on unwilling states or localities. It merely says they may not forbid their employees from communicating immigration-related information to federal officials. The state or local law enforcement agency doesn’t have to collect or provide any requested information itself, and it can even remind its employees that they aren’t obligated to send such information. Section 1373 has been upheld by a leading circuit court case, but it has not been ruled on by the Supreme Court. It might still be vulnerable to a challenge under the Court’s anti-commandeering doctrine, which provides that the federal government may not dragoon states into enforcing federal laws.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

The order still provides no definition of “sanctuary jurisdiction.” Though the term is commonly applied more broadly (see comment 1), the preamble to this section and this subsection seems to tie it only to violations of section 1373. Subsection 9(b) of the order, however, indirectly links the concept to declined detainers — a far more significant hindrance to ICE effectiveness. Complete funding cutoffs are basically the nuclear option to secure cooperation. Frugal and highly targeted use of this discretionary designation authority would be preferable, permitting the DHS secretary to rely primarily on cooperative outreach as a way of gradually restoring better cooperation with states and localities.

(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.

Cutting all federal grant money to such jurisdictions, even by statute, would raise serious questions under the Supreme Court’s Obamacare decision from 2012 (NFIB v. Sebelius). The Court there overturned the part of the Affordable Care Act that withheld all Medicaid funding from states that failed to expand their Medicaid eligibility to conform to ACA rules. The Court regarded such a broad funding cutoff as unconstitutionally coercive. But narrower funding restrictions more closely linked to the specific federal interest would pass muster. President Trump would probably be able to cut grants clearly related to immigration enforcement, and maybe a wider range of law enforcement grants as well — but almost certainly not grants in unrelated fields like urban planning or environmental protection.

Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as “Secure Communities” referenced in that memorandum.

Secretary Jeh Johnson ended Secure Communities in that memorandum, but he retained one key operational component — the immediate sharing by the FBI with ICE, for checking of ICE’s databases, of fingerprints received from local jurisdictions taken at the time of arrest and booking. Secure Communities became highly controversial when it led to the ICE arrest of long-resident unauthorized immigrants, often based on mere traffic offenses. The political reaction led many localities to cut back more generally on ICE cooperation. The Priority Enforcement Program was designed to restore SLEA cooperation. It called for ICE to narrow greatly the circumstances in which custody requests or information requests would issue on the basis of those ICE fingerprint checks, so that jurisdictions would generally be asked to hold or turn over only persons with serious criminal offenses. PEP succeeded in winning back at least tentative cooperation from many SLEAs. President Trump’s decision to revive “Secure Communities” — even using that controversial name — is almost a taunt, likely to be counterproductive, strengthening the resolve of non-cooperating jurisdictions.

(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.

(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.

Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.

Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.

This term refers to countries that refuse or delay the return of their nationals when the United States wants to deport them. INA Section 243(d) provides for the cutting off of visa issuance to nationals of a recalcitrant state, but the full sanction has been imposed infrequently — a longstanding sore point for those who favor strong immigration enforcement. In February 2016, ICE listed 23 recalcitrant countries, including China and India. As of late 2017, only Gambia was subject to an actual visa cutoff.

Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

Services to crime victims make sense (though whether this is best done by ICE is debatable), and enhancing efforts to deport immigration violators who have committed violent crimes is also wholly justified. But this innocuous-sounding report requirement, coupled with Section 16 of this order, could signal something more problematic — the possible launch of ongoing high-volume publicity featuring the victims of crimes committed by aliens. (Candidate Trump took this tack in important settings on the campaign trail.) A drumbeat of such reports would skew an honest understanding of the dimension of the enforcement challenge facing this nation. The overwhelming majority of immigration violators are otherwise law-abiding; only a very small minority are implicated in violent crime. One can develop a genuine and resolute strategy for truly effective enforcement against immigration violations without demonizing the violators. We need balanced policy analysis about better interior enforcement, not the inflaming of passions through selective presentation of data or anecdote.

Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.

Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:

(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;

(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and

(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.

Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.

Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

A very important — and inescapable — qualification on the directives in the Order. President Trump can’t decree the blockage of funds to a sanctuary jurisdiction, for example, if the statute and regulations setting up the grant program did not include cooperation in immigration enforcement among the program’s requirements — nor provide discretion for the agency later to add further criteria.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

January 25, 2017.

The Big Idea is Vox’s home for smart, often scholarly excursions into the most important issues and ideas in politics, science, and culture — typically written by outside contributors. If you have an idea for a piece, pitch us at thebigidea@vox.com.

Trump’s “refugee ban” — annotated by a former top Department of Homeland Security lawyer

2017-03-02T15:46:55-05:00

People attend an rally in Battery Park, in New York City, to protest US President Donald Trump’s executive order on refugees. | Spencer Platt / Getty

Annotations by David A. Martin, the Warner-Booker Professor of Law Emeritus at the University of Virginia. He served as principal deputy general counsel of the Department of Homeland Security from January 2009 to December 2010, general counsel of the Immigration and Naturalization Service under President Bill Clinton, and as special assistant in the human rights bureau at the State Department under President Jimmy Carter.

This executive order is clearly designed to direct — or more often signal, with details yet to come — fulfillment of some of candidate Trump’s broad statements or promises in the immigration arena, notably including promises like “extreme vetting” and a “Muslim ban.” Later in his campaign, the rhetoric shifted somewhat. Instead of a religion-based ban, for example, Donald Trump and his surrogates spoke more of blocking migration from countries with “terrorist involvement”; a ban focused on countries is probably less problematic than a ban based on religion, as a matter of both politics and law.

This order continues and refines that rhetorical trend, but its immediate suspension of the refugee admissions program and all migration from seven predominantly Muslim countries can be billed to core Trump supporters as a major achievement — even as it inspires protests and legal challenges.

Two days before this order was formally issued, a leaked draft version appeared in the press. The final order below contains a few significant modifications from that draft, which will be noted in the annotations. — David A. Martin

EXECUTIVE ORDER

PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES

The title in the preliminary draft of the order spoke of protecting from “terrorist attacks by foreign nationals.” Perhaps the title was changed to deflect the charge that the order overpromised.

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

This sentence starts like an uncharacteristic recognition of actual progress made by previous administrations. But the graciousness doesn’t linger. That line is just a set-up to establish an impossible measure of success: stopping all attacks. The measures here won’t fully stop attacks by foreign nationals who will be admitted in the future — but it may be a long while before an attack carried out by a Trump-era admittee reveals the lack of realism in such a standard.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

The draft order said that hundreds of foreign nationals have been convicted or implicated. Could retreating to “numerous” signal a sensitivity to pesky fact-checkers who keep asking for follow-up documentation? “Numerous” could be satisfied with perhaps just a half dozen examples.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.

Over many decades, immigration screening has evolved toward focusing on specific past acts or other behavioral evidence, rather than on states of mind. There is good reason for this trend. Subjective or vague criteria lend themselves to highly uneven application, can be misused by biased adjudicators, and are not easily monitored by supervisors for error or abuse. It will be a considerable challenge for DHS and the State Department to design screening processes to test for “hostile attitudes.” And some of our founding principles conflict — for example, ensuring domestic tranquility and promoting robust free speech. Which is a foreign national supposed to privilege?

The United States cannot, and should not, admit those who do not support the Constitution [1.], or those who would place violent ideologies over American law [2.].

1) What does it mean to insist that foreign visitors — for example, a two-week tourist from, say, Moscow — prove that they support the Constitution?

2) Some press accounts suggest that President Trump and his team have been looking for a basis to exclude persons who accept Islamic sharia law, on an apparent assumption that sharia always justifies violence against those deemed enemies of Islam. Some versions may fit that description, but many Muslims adhere to understandings of sharia that do not countenance such acts. Most devout religious believers, of any faith, if pressed, would say that God’s law ultimately outranks human law. (Compare Vice President Pence’s statement that he is “a Christian, a conservative, and a Republican — in that order.”)

Whenever a religious believer is applying for admission, then, much will depend on who gets to decide whether a particular religion amounts to a “violent ideology.” Muslim believers who adhere to the violent understanding of sharia will probably know enough to disguise their faith when questioned by a consular officer or a border inspector, whereas an ordinary Muslim tourist who adheres to a peaceable understanding of the doctrine could be ensnared by a simple statement that her faith includes acceptance of sharia obligations.

In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

An interesting effort to portray the “hostile attitude” screening as a servant, at least in part, of feminist values. It parallels the reference later in this section to forbidding oppression based on sexual orientation.

Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.

Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.

The order provides two ways to determine “countries of particular concern.” The swiftest, effective instantaneously, is the ban on entries from the seven countries imposed by subsection (c). The other involves a longer review of foreign states’ practices and then a listing of countries not sufficiently helpful in providing information for use in US admission decisions. That review process is spelled out in the other parts of this section. Apparently that process is also what will lead to the development of “extreme vetting.”

(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

The order’s drafters apparently think that many states are not providing information we need to serve these two goals in our admissions process. It’s not clear from the public record just what kinds of information they think are missing — nor how realistic it will be to receive such information regularly or on request, given the widely varying record-keeping systems among the globe’s nearly 200 nations, plus the variety of national sensitivities about sharing sovereign information.

The US does have arrangements with a great many states for regular sharing of arrest records and other police information when a person applies for a visa to the other country — highly useful in protecting against criminals and terrorists. And many states regularly share information on lost or stolen passports — which can be used by gangs or terrorist organizations to create genuine-looking travel documents for their operatives.

Some backsliding from prompt sharing can occur as an information-sharing agreement ages. The charitable interpretation of this review process is that it will help get the laggard countries back to satisfactory cooperation. The less charitable interpretation is that this review process gives wide discretionary scope to block the nationals of countries from which entries are seen as undesirable for other reasons, but cloaking such a ban in what appears to be a more scientific evaluation.

(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

This section’s designation of the key players in the review-and-listing process may provide some modest hope that it will be a serious effort and not a disguised way to blacklist nations disfavored for other reasons. Gen. John Kelly, secretary of DHS, and former Sen. Dan Coats (R-IN), nominee for the director of national intelligence post, have a reputation as experienced and pragmatic public servants. The secretary of state is also involved in the review. Nominee Rex Tillerson’s approach to these sorts of issues is not currently apparent.

(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section,

This ostensible reason is remarkably disingenuous in an order that imposes at least 11 new reporting requirements over the first year on DHS or State, plus many other perpetual half-yearly reports and other investigatory demands.

to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA [1.] , 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12) [2.], would be detrimental to the interests of the United States, and I hereby suspend entry [3.] into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas [5.].

1) This is the first of many uses in the order of this extraordinarily broad provision of the Immigration and Nationality Act, section 212(f). It gives the president broad authority to “suspend the entry of any aliens or any class of aliens” through a proclamation that such entry would be “detrimental to the interests of the United States.”

This provision has been in the INA since that act was adopted in 1952, but its use has always been far more focused than what we see in this order — such as a 1999 Clinton proclamation suspending entry of Serbian government officials responsible for repression of civilians in Kosovo, or a 2011 Obama order suspending entry of persons subject to UN travel bans (generally because of human rights abuses or terrorist activity).

Very broad entry bans were considered in the weeks after the 9/11 attacks, but an October 2003 Justice Department draft proclamation memo expressed doubt about some parts of that draft, noting that “no President has invoked section 212(f) for all nationals of a particular country but has tied the suspension to subsets of nationalities that have engaged in specified activity.” No such ban on all nationals of a country was entered in response to 9/11, and research has not found any such examples thereafter — until this order.

2) It is not uncommon in executive orders or statutes to use these kinds of cryptic cross-references to other statutory provisions in identifying the nations subject to certain requirements. But this way of referring to the seven targeted countries, all predominantly Muslim, seems of a piece with the Trump team’s effort over the past several months to downplay the fact that travel bans are addressed to concerns about Muslims. Section 217(a)(12), passed in 2015 after the San Bernardino shootings, imposes additional restrictions on travel to the US by persons who have traveled to regions of the world with significant terrorist presence. The statute specifically names Iraq and Syria and provides a process whereby further countries can be added. At present, five others are also on the list: Iran, Libya, Somalia, Sudan, and Yemen.

It is a difficult legal question whether an immigration entry ban based on religion would be ruled unconstitutional, because of the great deference the Supreme Court usually affords to immigration decisions by the political branches, especially those that affect persons not yet admitted to the United States. But there can be no doubt that this order will have a highly detrimental impact on our broader strategies to counter Islamic extremism.

The order is a priceless recruiting tool for ISIS and similar movements, because it so easily fits their narrative that the United States is the enemy of all Muslims. And it will discourage tips and information from American Muslim communities — information that in the past has proved highly valuable to the thwarting of terrorist acts. Accordingly, the Bush and Obama administrations both strived to avoid all measures that could be painted as broadly anti-Muslim. Much of that vital engagement with Muslim communities has been gravely undone by this order.

3) Press reports have suggested that the DHS issued initial guidance saying the ban did not apply to persons already admitted as lawful permanent residents who were returning from a trip abroad. This was apparently overruled by Steve Bannon and Steven Miller, top White House aides. Numerous reports state that even the top officials of the implementing departments were not consulted on the orders until very late in the process.

That is a surefire recipe for implementation problems, but the travel disruptions and general confusion we have witnessed after the issuance of this order may set a record for botched roll-outs. (Late Sunday, the White House reversed itself and said the restrictions would not apply to permanent residents with green cards.)

4) These are other types of diplomatic visas.

(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

If any of the countries contacted under subsection (d) fail to provide the information we want within 60 days, they can be referred to the president to issue a 212(f) proclamation suspending travel by all of their nationals to the US. Sixty days is an exceptionally short time frame for concluding the sorts of diplomatic negotiations ordinarily needed to effectuate these sorts of requests. Nonetheless, the use of the word “recommended” should give the secretaries discretion to hold off on triggering that sanction while talks progress — and possibly even to permit them to decide not to list owing to other foreign policy reasons.

(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.

(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.

This is potentially quite an important provision, especially to mop up some of the mess created by making this order instantaneously effective but without any agency involvement to prepare for implementation. Poignant hardship cases cropped up in the first hours of the order’s validity. According to press reports, border inspectors at JFK airport barred the entry of two Iraqis coming on special visas available, after lengthy vetting, to interpreters who face severe threats in Iraq because they had assisted US forces there. The inspectors reportedly told one of the arriving Iraqis that all Iraqi admissions were suspended and that the only person who could countermand that provision was President Trump. (Advance guidance on possible exceptions under the order was clearly defective — another sign of amateurish haste, especially regrettable as applied to persons who had risked their lives to assist the US military.) A habeas corpus petition to the federal court in Brooklyn produced a temporary restraining order late Saturday barring the removal in any manner of persons from the seven countries who arrive as part of the refugee admissions program or with validly approved visas or other lawful authorization.

The judge was primarily concerned about the application of the entry ban to persons already en route to the United States with valid visas or other authorization at the time of the order. Her restraining order (and similar ones recently issued in other districts) was meant to keep the individuals in the United States while the validity of the order is fully litigated. The plaintiffs allege that their detention and denial of entry violates the due process clause, the equal protection clause, applicable statutes, and treaties. As part of their equal protection claim, they assert that the executive order was motivated by animus against a particular religion. The judge’s brief order states that she found that the petitioners have a “strong likelihood of success” on their equal protection and due process claims.

(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.

Why so many reports on the heels of one another? This kind of overblown reporting requirement is far more characteristic of congressional statutes than executive orders — which may reflect the reported key role in the administration’s early moves by immigration experts who were formerly on the staff of Sen. Sessions. (Sessions, who is now awaiting confirmation as attorney general, has been a longtime leader in calling for greater restrictions on immigration.)

Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.

This section is phrased as though such requirements will be brand new to the implementing agencies. But in fact, mechanisms and processes meeting the section’s general descriptions have been in place for decades. They have, of course, been refined and augmented over time, especially with the infusion of resources after 9/11. This section probably should be read as an inflated way of tasking the agencies to continue looking for ongoing incremental improvements.

This program will include the development of a uniform screening standard and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

What? No adjudicator ever thought of these issues or needs before? Here we have another sign of the complete disconnect between actual existing processes and the contents of this order. The reporting secretaries could honestly say right now that their departments are in compliance with these specifications, with the possible exception of the requirement regarding the potential for positive contributions to society or to the national interest. This last item announces remarkably vague criteria that will be very hard to turn into operational guidance.

(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.

Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days.

A remarkably harsh and sudden provision, with no evidence of any factual developments that could conceivably merit this kind of immediate intervention. The only historical precedent was suspension of the refugee admission program after the 9/11 attacks. But those attacks had obviously revealed serious weaknesses in the sharing of needed intelligence among agencies and in the screening processes — for all immigration admissions, not specifically for refugees. All the 9/11 hijackers were present on nonimmigrant (temporary) visas; none were refugees. There is nothing remotely approaching an equivalent reason for a sudden across the board suspension now.

Further, the order was made effective instantaneously — which led to chaotic impacts on processes already underway, including previously chartered flights. That kind of impact was wholly foreseeable to anyone who has been involved in the complex logistics of refugee resettlement, but again, the order’s drafting process apparently involved no one with practical experience in refugee admissions from DHS or State. A great scramble in the 24 hours after its issuance has now resulted in decisions to allow people already scheduled on flights over the next seven days to come in, plus a court decision, mentioned above, halting returns under the order of people already at US ports of entry with previously issued US travel authorization.

During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures.

The current screening procedures for the refugee program are among the most comprehensive and thorough the US has ever applied. We will see whether the secretaries and the director have the courage to reflect that truth in their report — though of course there is room for them to recommend incremental additions and modifications.

Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.

(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, 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. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

This has been widely described as a special provision for Christian refugees from predominantly Muslim countries. It isn’t written that way (in keeping with an apparent overall administration strategy to make it hard to characterize this order as a Muslim ban), and the provision could have some wider application (e.g. to protect Baha’is fleeing Iran).

Exactly how the State Department operationalizes this “prioritizing” bears watching. It is a myth that Christians have been greatly disadvantaged in past refugee admissions. Washington Post fact-checkers provided a careful review of this issue. They found that there are some anomalies that may justify further scrutiny, but overall refugee admissions from the Middle East show a strong percentage of Christians.

(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.

What is it about Syrians that they draw such special scorn from high-ranking Republicans — first a host of governors in 2015 and now the president? This ultra-harsh use of the nuclear 212(f) power bars Syrians until the president personally issues a new proclamation — even if the refugee processing review commanded by this order results in a finding by DHS, State, and the DNI that current screening is adequately protective.

The earlier draft order leaked to the press on January 25 contained a separate section calling for the establishment of “safe zones” in the surrounding region where Syrians could “await firm settlement” via repatriation or third country offers — seemingly a palliative (though problematic for many reasons) to counterbalance the harshness of the flat ban. But the final order dropped any mention of safe zones or other alternative solutions.

(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.

The UN refugee agency is confronting record-high global numbers of displaced people, but we are going to cut our admissions for this year by more than half. (Obama had set the authorized level for 2017 at 110,000, and 25,000 have already been admitted for this fiscal year.) The US has historically been the absolute leader in refugee resettlement. This cut will have ripple effects producing a reduction by other countries as well. And again Trump uses the nuclear option of 212(f) to countermand Obama’s directive.

(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.

This important waiver provision parallels the case-by-case discretion granted to these secretaries in section 3(g) — and it is proving essential to recover some semblance of order in the early implementation of these refugee changes. The reference to persons already in transit was a last-minute addition reportedly based on a special push by career State Department officials (who were otherwise only minimally involved in or consulted on this order). It will now be used on a significant scale over the coming weeks.

Late Saturday, January 28, the White House was apparently persuaded to let previously chartered refugee flights continue for a few more days, which may allow more than 800 refugees in the pipeline to travel here. But if you are farther back in the queue, no such luck. Wait 120 days and hope that the review will produce a result that allows persons of your nationality to enter as refugees.

(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.

(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.

In the early draft of this order, leaked to the press, there was no provision addressing the state and local role. The late addition of this subsection would seem to reflect the influence of Vice President Pence. He had been a leader among Republican governors in trying to block Syrian refugees destined for his state, until litigation thwarted those efforts.

Nonetheless, it is notable that this provision does not say states should have a veto on such admissions — just “a role.” (They already have one, a carefully crafted advisory role, worked out as part of the enactment of the Refugee Act of 1980.) So again, we must wait and see about key details. Could it be that the vice president’s enthusiasm for state control might be receding, now that Christian refugees will probably claim a higher percentage of refugee admissions? Or maybe it’s just easier to see the benefits of ultimate federal control over migration decisions when you view the issue as a federal official.

Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.

This Section betrays little understanding of what those exercises of authority accomplish. After 9/11, successive statutes kept widening the definitions of “terrorist organization” and “material support” in the Immigration and Nationality Act, to the point where the provision of rice at gunpoint to an armed group occupying your village made you wholly inadmissible to the United States. It similarly blocked admission of some persons who had supported organizations (for example, in Burma) that were regarded as freedom fighters by US policy.

Instead of narrowing the provisions that produced these results, Congress chose to provide the secretaries of state and Homeland Security unreviewable discretion to grant exemptions — decisions which are declared to be immune to judicial review. That waiver process has alleviated some of the most extreme and absurd applications of the broadly worded bans. Carefully crafted exemptions now allow — but do not require — waiver of the bans, for example, for aid provided under duress, or for doctors and nurses who provide medical assistance to wounded combatants. Maybe we should be thankful that this section only requires “considering” rescission, rather than directing that result.

Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.

We already have a biometric entry tracking system, taking fingerprints of all foreign arrivals at air and seaports and of many at land entry ports. It could profitably be expanded at the land borders, but the logistical challenges are considerable, given the scale of traffic there.

The building of a biometric exit capacity is seen by its supporters as the key to better enforcement of the law against visa overstays — but that widespread view is simply mistaken. Biometric exit capacity would cost billions for infrastructure changes at ports not now built to handle outbound screening — and it has been resisted by the airlines, who know that it would greatly impede smooth boarding procedures.

Better enforcement against overstays is a good idea, but current biographical exit tracking — based on name and, e.g., passport information — has been greatly improved as a result of post-9/11 reforms. We already have the capacity through those mechanisms to identify likely overstays with significant precision. The main further needed step needed is the assignment of significant resources to the old-fashioned investigative work required to actually find someone who has overstayed — that is, more ICE agents on this task. Biometric tracking just tells you who has overstayed (with slightly greater accuracy than the current biographical system), but it says nothing about where the apparent violator can be found.

(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.

Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.

After 9/11, Congress mandated that all applicants for visas between the ages of 14 and 79 be interviewed in person, but it allowed the secretary of state to grant waivers in certain cases, mainly persons traveling on diplomatic visas and repeat travelers who were interviewed earlier when given a previous visa. Thus, granting waivers does not mean noncompliance with the statute, and it is not obvious what prompted this demand from the president for suspension.

In any event, there is no specified length for the suspension. Maybe selective interview waivers can be restored quickly so as to avoid the greater delays that will surely result from suspension. Subsection (b) acknowledges that impact. But even though it calls for the hiring of consular fellows, that won’t do much, at least for a long while, to reduce wait times.

(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected.

Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.

Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter:

(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;

This wording reflects an important change from the executive order’s earlier draft. That document had called for compiling statistics on the number of “foreign-born individuals” involved in these various terrorism related crimes or activities. In other words, it would include naturalized citizens. The restriction to foreign nationals is a welcome change, but there is still reason to be concerned about exaggerated use of the data compiled under this section of the order to feed the demonization of foreign nationals living among us.

(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and

(iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and

(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.

(b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.

Nothing here would prevent the secretary from including in the report information on the offsetting long-term benefits derived from refugee admissions, and it would be good if that happens. The US refugee program has long emphasized early entry into the labor market, and most refugees promptly become contributing members of their new communities. Another unseen benefit of a robust US refugee program is fidelity to a vitally important part of this nation’s historical identity.

Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

In other words, Congress retains a very important role. Let’s hope members will find the courage to step forward and use these tools to ameliorate the disproportionately harsh effects of this poorly designed order.

DONALD J. TRUMP

THE WHITE HOUSE,

January 27, 2017.