Over the last weekend of January, Donald Trump screened his very first movie at the White House Family Theater: Finding Dory. He sat in the bright red president’s armchair watching an animated story about a forgetful Australian fish who, with the help of her underwater friends, reunites with her parents by illegally entering the United States by way of Morro Bay, California.
Meanwhile, outside the theater protesters gathered across the country at major US airports.
On January 27, 2017, Trump issued his executive order, “Protecting The Nation From Foreign Terrorist Entry Into The United States.” The order effectively banned the entrance of non-US citizens from seven countries: Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen. Refugees, too, were banned for a 120-day period. Trump’s order caused immediate national uproar, resulting in weekend chaos and confusion as international travelers were detained at US checkpoints or their flights were diverted out of the United States. Regarding the reinstatement of the Refugee Admissions Program after 120 days, the order made a peculiar note:
[T]he 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.
While the order itself did not suggest prioritization of Christian refugees, it goes without saying that Christianity is a minority religion in all seven of the majority-Muslim countries listed for exclusion from travel. In response to concerns about religious discrimination in his executive order, Trump stated, “If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair—everybody was persecuted, in all fairness—but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”
After a lawsuit was filed by the American Civil Liberties Union, a federal court issued an emergency stay temporarily prohibiting the enforcement of the executive order. “There is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations such to the January 27, 2017, executive order,” District Court Judge Ann Donnelly wrote in her order granting the stay.
Judge Donnelly’s orders echo a history of protecting refugees under international law. While refugees have arguably existed for as long as human civilization, an international commitment to protecting the rights of refugees is relatively recent. Following the end of World War II, which displaced millions throughout Europe, there came a need for international recognition and cooperation for the rights of refugees. This was first addressed in Article Fourteen of the 1948 UN Declaration of Human Rights, which states: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” The article prompted the establishment of the High Commissioner for Refugees in 1949, headed by the United States. It also led to the birth of the Convention Relating to the Status of Refugees two years later.
The convention takes an unequivocal stance on the rights of persons seeking asylum in other countries and tasks the UN High Commissioner for Refugees with enforcing it. More significantly, it explicitly defines the refugee: one who is outside his or her country of origin and cannot return for fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion. It is also heavily predicated on the specifics of World War II, limiting itself to the “result of events occurring before January 1, 1951.” A protocol, or amendment, was passed removing these restrictions in 1967.
Both instruments instruct parti-cipating states to provide “refugees within their territories treatment at least as favorable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.”
The United States is a party to the 1967 protocol.
There is an issue with Donnelly’s orders, although through no fault of her own. While they recognize the imminent danger facing refugees who are denied entry, there is nothing to suggest that refugees are in fact protected by the US Constitution—including their rights to be treated like US citizens with respect to the freedom of religion. As University of Chicago law professor Eric Posner writes:
The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections. While the court has not ruled on religious discrimination, it has also never given the slightest indication that religion would be exempt from the general rule.
Under these circumstances, it is entirely possible that the Trump administration could constitutionally prioritize the admission of refugees based on religious affiliation. The practice would, nevertheless, run afoul of the United States’ general commitment to the Refugee Convention and its 1967 protocol.
Trump’s order also conflicts with the existence of a federal statute established to promote and protect religious freedom through the State Department: the International Religious Freedom Act (IRFA). Originally introduced by Senator Frank Wolf (R-VA), the act was passed by Congress in 1998 and has since played an instrumental role in shaping US foreign policy. (Obama signed an amended version of the act to include non-theists and those not affiliated with a particular religion before he left office.) It is unclear how the US will continue under IRFA if it begins admitting refugees based solely on religious affiliation.
The conflicting nature of Trump’s executive order with international law also turns to a problem well-known to the international community: enforcement. The failure of international bodies to adequately enforce their policies has led much of the world to believe they are largely symbolic in nature. One can’t entirely fault them for this sizeable undertaking. Any clash between the participating state’s interests, with the obligations of the international policy, make it incredibly challenging to enforce the policy without also violating the sovereign right of the state. The willing and active participation of the state is thus a critical component of the success of the policy.
Not only is the United States a so-called contracting state to the 1951 Refugee Convention and the 1967 protocol, but it has historically been the top donor to the UN Human Rights Council (UNHRC), which oversees the implementation of these instruments. In 2016 alone, the United States topped the agency’s donor chart at $1,493,799,619, followed by the European Union at $341,606,227 (less than one-fifth the US contribution). The UNHCR also plays a critical role in the US Refugee Admissions Program (RAP), which Trump’s order sought to suspend and restrict. Should he decide to sever ties with the United Nations, as surmounting speculation suggests he might, it’s likely that Trump will also limit if not completely terminate donations to the UNHCR. The result would be the indirect collapse of the agency, which relies heavily on US support. With a vacant seat at the UN Security Council, and an empty bank account at the UNHCR, the fate of refugees in a Trump world seems bleak. A heavy burden will also be placed on the remaining contracting states, both financially and physically, to support the agency and displaced persons at their borders.
The United States is currently experiencing an unprecedented battle between long-standing federal law and the new Trump administration. Trump remains defiant, in part evidenced by his recent and fantastical exchange with Australian Prime Minister Turnbull, where he accused Australia of trying to export the next “Boston Bombers” to the United States. He also publicly condemned federal judges on Twitter for issuing a temporary stay of his executive orders, citing unsubstantiated and imminent threats to national security. However, on February 9, 2017, the Ninth Circuit denied Trump’s request to lift the temporary restriction, stating:
On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.
The American judiciary’s refusal to entertain Trump’s fearmongering is, for now, preserving the separation between church and state. However, it is uncertain whether this battle of the branches will assure that refugees of faith, or no faith, will find new homes in this country in the future.
While protesting at airports over Trump’s ban, the country also condemned his screening of Finding Dory. Ellen DeGeneres, who voices the main character, commented, “Dory lives in Australia and these are her parents, and they live in America. And I don’t know what religion they are, but her dad sounds a little Jewish. It doesn’t matter.”
DeGeneres is right: religion doesn’t matter. If the founding instruments of international refugee law are to be considered, it never mattered. However, in finding Trump’s refugee policy, it might now be what matters most.