JURIST Guest Columnist Margaret Hu of Washington and Lee University School of Law, discusses President Trump’s break from post-WWII precedent on refugee policy …

As “leader of the free world,” every post-World War II US President has expressed some form of public support for refugees through speeches and White House statements.

With the refugee crisis of World War II, federal immigration and refugee policymaking in the United States adopted a humanitarian dimension by necessity. By the end of World War II, there were over 40 million refugees in Europe. The millions of refugees displaced by war and persecution led to the earliest development of an intricate framework that guides refugee and asylum law internationally. It is a framework that endures today. After the global traumas of World War II, every President has expressed a commitment to participation in the development of a global migration policy that considers larger geopolitical interests and that recognizes the importance of international human rights, of which refugee policy is a part.

We are now in the midst of a refugee crisis that is worse than the refugee crisis of World War II. In 2016, the United Nations High Commissioner for Refugees reported that the number of refugees had risen to 65.3 million by the end of 2015. This reflected an increase of approximately 5.8 million refugee seekers from the prior year.

The painful memory of a xenophobic, nativist and isolationist immigration policy continues to haunt us in the United States. The United States Holocaust Memorial Museum, for instance, documents the voyage of a German transatlantic liner, the St. Louis, from Hamburg, Germany, to Havana, Cuba, in 1939. The St. Louis carried 937 passengers, nearly all European Jews fleeing the Third Reich. After Cuba denied entry to most of the passengers, they attempted to set sail to Miami, Florida, seeking refugee status from the United States. On June 6, 1939, after the United States failed to grant permission for the passengers to disembark, the St. Louis returned to Europe. Although Great Britain, France, Belgium and the Netherlands agreed to take some of the refugees aboard the St. Louis, 532 St. Louis passengers were trapped when the Nazis gained control of Europe. According to the Holocaust Museum, 278 survived the Holocaust and 254 died.

For decades after World War II, there was a call to end the National Origins Act of 1924 and the racial sciences of eugenics that had supported it. The National Origins Act established a restrictive immigration framework to block immigrants from Asia and Africa. It also greatly restricted immigrants from Eastern and Southern Europe, specifically targeting Italians, Slavs and Eastern European Jews. The Jewish refugees aboard the St. Louis fleeing the Third Reich were informed that the immigration quotas set by the National Origins Act could not be lifted for them. As Duke University historian Claudia Koontz documents in The Nazi Conscience (2003), Nazi leaders “expressed admiration for the United States as a model both because anti-miscegenation laws and immigration quotas seemed so clear-cut and because public opinion [in the United States] accepted them as natural.”

It is not a coincidence that the Immigration and Nationality Act of 1965, the Voting Rights Act of 1965 and the Civil Rights Act of 1964 passed almost concurrently. Although it included some exceptions, the Immigration and Nationality Act of 1965 prohibited discrimination in the issuance of visas on the basis of “race, sex, nationality, place of birth, or place of residence[.]”

On Friday January 27, 2017, on the same day as International Holocaust Remembrance Day, President Trump signed an Executive Order titled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The Executive Order temporarily excludes immigration from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen and suspends refugees from Syria indefinitely.

The Saturday morning after the Executive Order was signed, on January 28, 2017, in Darweesh v. Trump, attorneys immediately filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief in the Eastern District of New York on behalf of two Iranian immigrants. By that Saturday evening, Judge Ann Donnelly of Eastern District of New York sided with the plaintiffs, finding they would likely to succeed on the merits in showing that the Executive Order violates their Due Process and Equal Protection rights.

Jonathan Polonsky, senior counsel at Kilpatrick Townsend & Stockton, represented Hameed Khalid Darweesh pro bono. He explained to reporters that he is committed to this effort, in part, because his family includes refugees and Holocaust survivors. For the past two years, Polonsky assisted law student volunteers in advising Darweesh on his special immigrant visa. Darweesh’s family had suffered death threats because of his work as an interpreter for US Armed Forces, first discovering a bomb in his home and then facing a car explosion in front of his house. For now, as a result of Judge James Robart’s decision in the Western District of Washington on Friday, February 3, 2017, temporarily halting the implementation of the Executive Order in its entirety, those who had been adversely impacted by the Executive Order are safe.

Collectively, President Trump’s actions on immigration signal a sharp and dramatic departure from the equality and humanitarian norms of prior administrations, including a reversal of the stance of the most recent Republican President, George W. Bush. In his address to the nation on the need for comprehensive immigration reform, on May 15, 2006, President George W. Bush explained: “We honor the heritage of all who come here, no matter where they are from, because we trust in our country’s genius for making us all Americans, one nation under God.” The Executive Order is currently being questioned in the federal courts for its constitutionality. The Executive Order is also being questioned in the court of public opinion as being inconsistent with American values and as lacking the type of humanitarian leadership on refugee policy expected of American presidents since the close of World War II.

Margaret Hu is an Associate Professor of Law at Washington and Lee University School of Law. She has served as senior policy advisor for the White House Initiative on Asian Americans and Pacific Islanders and as special policy counsel in the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, US Department of Justice.

Suggested citation: Margaret Hu, Trump’s Immigration Order Signals Sharp Departure from Other Post-WWII Presidents, JURIST – Academic Commentary, Feb. 7, 2017, http://jurist.org/forum/2017/01/margaret-hu-trump-immigration-departure.php.