Trump’s Executive Order Covers Green Cards — That Makes No Sense

Critic of his though I may be, I’m not opposed to everything that Donald Trump seeks to do on immigration. In my conception, policy in this area must be designed for the existing polity rather than for those who wish to move here, and, where at all possible, any planned influx should be squared with the maintenance of the American settlement. On most question I lean libertarian, but on this one I demur. I am not, let’s say, a fan of Jose Antonio Vargas.

Nevertheless, I must add my voice this evening to those who are condemning Trump’s much-discussed executive order — and in particular, its application to green card holders. In a statement this evening, the Department of Homeland Security confirmed that Trump’s order, which temporarily bars “people from seven Muslim-majority countries from entering the U.S.,” also serves to “bar green card holders.” Or, put another way: Today, the U.S. government decided that being a legal permanent resident of the United States of America accords you no protection from the capricious strokes of the president’s pen. That’s not acceptable.

Green card holders are not citizens — depending on the card and how it was obtained, that honor comes three or five years later. But they’re not bog-standard visa-holders either. Unlike, say, H1B-carriers, permanent residents live in America full-time, and they are penalized if they don’t. By law and by expectation, this country is their home; their base; the ground in which their roots are planted. Because of this, permanent residents are able to purchase, own, and carry firearms; they are required to register with the selective service; and they are treated for tax and welfare purposes as are U.S. citizens. They can’t vote or serve on a jury, but, other than, they effectively enjoy all the liberties that natural born Americans enjoy. When they re-enter the country, the agent says “Welcome Home,” which is a big change from their visa days. They are not Americans, and they mustn’t pretend to be. But they are as close as one can get without being one.

And that’s fine. As a permanent resident myself, I don’t expect to be handed a passport or treated like a citizen (for what it’s worth, I like Josh Marshall’s conception of “thick citizenship”). But I do expect to be treated differently than a guy who just got off a plane for the first time — and not least because the process of obtaining a green card is tough. It took me a year from application to acceptance, and the vast majority of that time was taken up by the FBI. In addition to furnishing the government with my residential history, my employment history, and my criminal record (which is clean), I had to provide details of any clubs or societies to which I have ever belonged, to promise I wasn’t a terrorist or a Nazi or a communist, and to submit my fingerprints and a government-taken photograph on top. Which is to say: I had to go through the wringer before my card was issued. Because I was spotlessly clean my application wasn’t too involved, but I have friends whose days have been taken up by details of their parking tickets or their boyhood indiscretions or their penchant for getting fired. This is a tough nut to crack.

I bring this up not because I object to these strictures. I don’t. In fact, I’m hard-line enough to think that it would make sense to include some form of civics-and-language test prior to green cards being issued. Rather, I bring it up because I can’t work out how applying Trump’s rule to the holders of green cards makes any logical sense. As I have noted, these are people who have already gone through the vetting process; people who have been granted permanent residency; people who have made their lives here on the understanding that to fail to do so will incur penalties. What possible sense can it make to temporarily restrict their travel? If Trump is arguing that the vetting process wasn’t any good then he should be proposing far more than a temporary limitation; he should be proposing a wholesale revisitation of the system. But he’s not. In three or four months, the people who are being turned away today will be let in again. And what will Trump have achieved? Certainly not the same things as declining to allow new applications will.

Good policy sense notwithstanding, I also think that this is a political mistake — the rock, perhaps, on which Trump’s ship is likely to founder. By necessity, the stories that will result from this measure are going to be absolutely horrendous. For reasons that are both good and bad, many Americans will carefully tune out the talk of refugees, and yet more will find it hard to care if there are no visas granted to people from countries that are far, far away. But when voters turn on the TV and see a parade of families from Queens who have been detained while checking in for their Emirates flight, the timbre will change upon the instant. As I’m fond of telling people who ask me “why” I “care about American politics,” I am not yet an American, but I do live here. My son and wife are here. I pay my mortgage here. I own a car here. I have a job here. And the same thing is true for green card holders from all over the world. If I were to be denied re-entry, I would be separated from my whole world.

Again, lest I be misunderstood: I have no issue with the heightened scrutiny of applicants from war-torn or politically unstable regions; I have no problem with the primacy of American values; and if voters wish to use the legislature to limit our future inflows, that’s their prerogative. But to close the door on those who have been granted permission to live here forever? I cannot see the advantage that is gained.

Legally, too, I suspect that Trump is inviting fire down upon his head. I agree with the Supreme Court that Congress enjoys plenary power over all matters related to immigration, but that doesn’t mean that executive is incapable of violating the laws that Congress has chosen to pass, and it doesn’t mean that the green card should mean nothing to the executive branch. Indeed, in recent years, both Congress and the courts have taken steps toward rendering permanent residents as no less than “citizens who can’t vote.” Under current law, green card holders are treated as “U.S. persons” in both Congressional statutes and by the Supreme Court – see U.S. v. Verdugo-Urquidez for more details, and look also at the tendency of modern judges to accord terrorist aliens who cannot call upon the American right of habeas corpus the right to challenge their detentions — and I see no evidence whatsoever that this is about to change. Is Trump really going to upend the green-card status quo with an ill-drafted executive order? I doubt it.

Instead, he seems intent upon poking the hornets’ nest, and possibly at the expense of his agenda in this realm. Had he stuck to his predecessors’ precedents, he would today be on safe ground. Had he submitted his plans to Congress, for debate and dissent and redrafting, the teething pains might have been significantly lessened. Had he involved his departments before the crisis hit, he would have been able to provide answers that sounded credible to the ear. But he didn’t. He went for broke, regardless of the law and the consequences. And now will come the fallout.

Original author: Charles C. W. Cooke

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