by By Sarah Song*
On Monday the U.S. Supreme Court allowed some of President Trump’s travel ban to stand, which he quickly hailed as a “clear victory.” Challengers of the ban have been equally quick to emphasize that the court’s opinion actually protects many people seeking to enter the U.S. including those who have families, offers of employment, or invitations from universities—those with “a bona fide relationship with a person or entity” in the U.S.[1] In drawing this line, the court delivered a victory to the plaintiffs bringing these cases, those with families affected by the ban and the Hawaii attorney general who brought suit partly on behalf of the state’s university. Who falls outside the line, as the court itself pointed out, are refugees who lack any bona fide relationship to the U.S. In their case, “the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.” To be sure, protecting national security is a compelling governmental interest, but the government has not produced any evidence that the travel ban actually preserves national security or that eliminating the ban would harm national security. By contrast, what is at stake for refugees excluded by the ban is a matter of life and death.
The U.S. has a moral obligation to take in those fleeing persecution and violence, including those who may have no prior connection to the country. Many noted the irony of President Trump signing his initial executive order closing U.S. borders to refugees on International Holocaust Remembrance Day. Not only did the EO suspend travel by citizens of seven (later revised to six) predominantly Muslim countries; it also halted the resettlement of refugees and cut the number of refugees to be admitted down to 50,000 from 110,000.[2] Protests sprang up at airports around the country with demonstrators carrying signs that said “Refugees welcome,” “No Ban, No Wall,” and “Shame.”
There are 16.1 million refugees currently under the UNHCR’s mandate. The vast majority (86 percent) are currently hosted by developing countries, with the top host countries being Turkey (2.5 million refugees), Pakistan (1.6 million), and Lebanon (1.1 million).[3] Geographic proximity is the de facto rule by which the responsibility toward refugees is distributed: neighboring countries are the first place refugees are able to get to, and the principle of non-refoulement (not returning refugees to a place where they would face persecution) has resulted in an international system of refugee protection that reinforces inequalities between rich and poor countries.
There is no generally recognized legal obligation to take in refugees for resettlement. What about as a moral matter? What would a more just system of sharing responsibility to resettle refugees look like? It would take into account not only prior relationships to a particular country but also a state’s capacity to integrate refugees. For example, we could argue the U.S. has a special responsibility toward Iraqi and Afghan refugees in virtue of U.S. intervention in these countries. Relevant criteria of state capacity include the size of the state’s territory, its population size and density, GDP, and unemployment rates. Wealthier countries with stronger integrative capacities should bear more responsibility than poorer countries with weaker integrative capacities.
You don’t have to accept the details of this particular proposal for sharing responsibility toward refugees to agree that the U.S. should be doing more to assist refugees. In 2016, the U.S. overseas refugee program admitted 96,900 refugees, the highest number of refugees referred by the UNHCR for resettlement.[4] This year Trump has set the cap at 50,000. It’s not just global humanitarian principles at stake but America’s own self-understanding as a nation offering refuge for the “huddled masses yearning to breathe free.” One sign I saw protesting Trump’s EO captured it well: “un-American.”
*Sarah Song is a Professor of Law and Political Science at U.C. Berkeley
[1] Donald J. Trump v. International Refugee Assistance Project, 582 U.S. _ (2017): https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf.
[2] Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States, 82 F.R. 8977 (Jan 27, 2017). (https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states) and Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States, 82 F.R. 13209 (Mar 6, 2017). (https://www.federalregister.gov/documents/2017/03/09/2017-04837/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states).
[3] United Nations High Commissioner for Refugees, “Global Trends: Forced Displacement in 2015,” 2-3.
[4] See http://www.unhcr.org/globaltrends2016/.