Speaking earlier this week, Republican candidate Donald Trump said that if elected president, he would send home all of the Syrian refugees the United States has accepted. “I’m putting the people on notice that are coming here from Syria as part of this mass migration,” he said during a rally. “If I win, they’re going back.”
Would this be constitutional? Well, as a rule, if a president’s actions mark a dramatic and extraordinary departure from universally accepted use of executive discretion, then he or she would probably be violating the Constitution. And that’s exactly what the mass deportation of a group of already accepted refugees would mean.
In the past, presidents of both parties have taken humane action on the issue, legally exercising their authority by postponing the deportation of groups of undocumented immigrants, including abused women, hurricane victims and refugees. In contrast, no president has deported a large category of refugees that would have been legally admitted to the United States.
To understand what a dramatic undertaking that would be, just look at the numbers. The United States currently admits a presidentially decreed ceiling of refugees every year. For 2015, that number is 70,000. These refugees come from many different countries, including those in the Middle East and Africa. But before coming to the United States, all these refugees undergo a long and detailed security screening, one that can typically take up to two years. So, if the United States admits a refugee, he or she will have been carefully vetted, even if they are part of a large group of Syrian refugees, in accordance with the 1980 Refugee Act.
For a president to cut across these established procedures would be a violation of U.S. law and the president’s power. And it would also be a violation of international refugee law. After all, the United States signed onto an international treaty when it ratified the 1967 Protocol relating to the Status of Refugees in 1968. To conform to our treaty obligations, Congress enacted the Refugee Act. Our refugee laws and policy is thus in line with international refugee law, along with the almost 150 other countries party to either the 1951 Refugee Convention or its 1967 Protocol.
The reality is that our statutory language closely tracks international texts, and our practice when it comes to refugees closely aligns with international standards. But what should the United States do when it comes to responding to the migration of Syrians, who are fleeing the civil war in their country on a massive scale?
Increasing the quota of refugees coming to the United States — not threatening to send them back — is a step in the right direction in international terms. But under U.S. law, the screening process is inevitably a long one, and even if the U.S. took thousands of Syrian refugees, it would still be a small proportion of the massive outflow we are currently witnessing in the region.
That said, there are still a couple of other routes the United States can take to help in addition to taking more refugees. First, our leaders must find a way to stop the hemorrhaging of people from Syria itself by trying to find a way to end the conflict there. Second, the United States can do more to support the countries bordering Syria — primarily Lebanon, Jordan and Turkey — which are taking the majority of the refugees. Lebanon is currently hosting well over a million Syrians and Turkey about 2 million. This is causing significant political strains within these countries.
Meanwhile, Europe’s response to the influx of refugees over the past few months has highlighted the political discord on the continent, along with a total lack of preparedness. This is despite the fact that this is not the first time that Europe and the United States have faced a significant refugee crisis. France, for example, absorbed more than 100,000 boat people from Indochina in the 1970s with little or no protesting.
The fact is that there is no compelling reason why Europe and the United States could not absorb more refugees than they are currently committing to. And there are plenty of reasons why they should — many of the Syrian refugees seeking to come to Europe are well educated, middle class and highly motivated to re-establish their lives and livelihoods. What is missing is political leadership, for lawmakers and prospective lawmakers alike to push for us to step up to our international obligations. Doing so would be a reflection of this country’s history of generosity — and also the humane response to the tragedy we are witnessing.
Threatening to expel refugees is reminiscent of the kind of rhetoric we heard during World War II. It is certainly not right, and it is certainly not the American Way.
