President Trump’s immigration order raises a wide of array of legal issues, Professor Anil Kalhan said during a series of published interviews.
“I think there are serious constitutional questions, serious statutory questions that arise from this,” Kalhan said on WHYY's Radio Times on Feb. 1, predicting that the courts will take a very close look at the order, given the chaotic rollout of the policy and widespread public opposition.
The interview came one day before the National Constitution Center aired a debate between Kalhan and Temple University Professor Peter Spiro concerning the executive order. The debate is available via podcast on the center’s website.
In an article in The Verge that explored states’ efforts to conceal immigration data that could be used for mass deportations, Kalhan said there could be a showdown between state and federal authorities.
“The reason why federal authorities want to access information from state and local officials is because their personnel and resources are limited,” he said. “The logic of doing this is that it essentially creates border checkpoints all over the place. So when a person is going about day-to-day life and interacting with the police or applying for a driver’s license or for social service benefits — that effectively becomes an immigration screening opportunity.”
On Radio Times, Kalhan said Trump’s executive order was fundamentally different from immigration halts imposed by presidents Carter, Bush and Obama.
“This is quite different," Kalhan said, explaining that the prior initiatives were all very narrowly targeted, typically tied to a specific exigent circumstance and a specific factual threat.
In 2011, he noted, President Obama stopped immigration from Iraq, based on information that arose about people who had been admitted as refugees.
“It was not a shutdown. It was a focus on reinforcing and strengthening the vetting processes that were in place,” Kalhan said. “This one is a blanket suspension of all refugee admissions – an indefinite ban on Syrians.”
Even after refugee processing resumes, Kalhan said, “the executive order contemplates having a religious preference for people who are from minority religions, which is inconsistent with our obligations under the Refugee Convention but also raises questions as a matter of domestic constitutional law, potentially as a matter under statutory law.”
Tucked into Trump’s order, Kalhan added, are little-noticed provisions that go beyond banning travel from seven Muslim-dominant countries.
“It goes further to suggest that all immigration programs going forward will need to incorporate a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and their ability to make contributions in the national interest,” Kalhan said. “Those kinds of provisions go way beyond even the stated basis for why this order is being put into effect and probably conflict with the scheme that Congress has already set forth for who are people who are in the national interest to admit to the United States.”