President Trump’s recent executive order suspending asylum and immigration from certain countries has drawn considerable national and international condemnation. The order impacts a range of countries, all from the Middle East/East Africa; both immigrants and refugees.

The president has powers to restrict and limit immigration. These powers were exercised by President Obama, for example. So long as orders remain “constitutional” and in-line with national law and international agreements that the U.S. has signed up to, they cannot be legally challenged with a fair prospect of success.

The levers that can be used to challenge the law are: (1) for refugees: the refugee convention, which prohibits discrimination against refugees on the basis of religion, and which the U.S has signed; and (2) the Immigration and Nationality Act which also prohibits discrimination for issuing visas.

So the first question is this: does the executive order discriminate on the basis of religion?

In the text of the EO:

• There is clear reference to religion, specifically: that people of minority religions will be prioritized for visa and refugee resettlement. So a form of positive discrimination.
• The basis of implementation is that in order to protect Americans (my emphasis):
  • The U.S “must ensure that people entering the country do not bear hostile attitudes towards it, and its founding principles”;
  • No-one to be admitted who “do not support the Constitution, or those who would place violent ideologies over American law”;
  • People who “engage in acts of bigotry or hatred (including “honor” killings, other forms of vioelence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”
• And that amongst others, one purpose of suspending the visa process for immigration is to “evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest.”

The EO thus transcends the requirement to screen for persons only who are technically involved in planning or executing acts of terrorism – it also focuses on the attitudes, practices and beliefs of the immigrants or refugees. It screens them against normative American values on gender, sexual orientation, and freedom of religion.

There is no explicit reference to Islam in the EO, however the countries that are affected by the ban are: Iraq, which has Islamic law as the formal source of law; Iran, which is an Islamic Republic; Sudan and Yemen where the legal system is based on sharia law; and Somalia, where there is no fully applied law, but sharia law is normative.

All of these countries have large numbers of citizens who would wish to harm the U.S physically, it is true. Yet it is the systemic application of sharia law in these countries that helps to formally endow all Muslim citizens with their attitudes towards what is legally permitted in society.

Sharia law does not have equality before the law for gay people, women, or persons of other faiths, for example. As a corollary it allows (technically at least) the violent/lethal condemnation of gays and converts out of Islam, as well as violence against women. Even if those are not personally held beliefs, they legally acceptable beliefs to persons of Islamic faith; and in some Islamic countries they are codified into law.

Because of the countries impacted by the EO, the base case for any person applying for either an immigration visa or refugee resettlement, chosen at random, is that they are of Islamic faith. For either an immigrant or refugee, it may be incumbent upon that person to prove that they do not subscribe to certain values they may be legally permitted to subscribe to.

If, as part of an immigration procedure, immigrants must renounce components of their religion that contain values antithetical to their prospective host nation’s national interest, to what extent is that a form of discrimination? This shows that the executive order is not just about terrorism, it is about values. And to be specific: those of the West and “The Rest”.

Immigration is a choice and it could be argued “if you don’t like it, don’t move there”. But being a (real) refugee is not a choice. Refugees therefore present an additional conundrum because if the refugee holds views that are “against the national interest” of the United States, the question becomes: does the personal right of that refugee to live free from persecution(s) in their state of birth, override the rights of citizens in the U.S. to live in freedom from persecution from that refugee?

This is a deep question. Answering it will be vitally important for the harmonious application 21^st century international law on refugees, which is currently experiencing something of a global breakdown.

That is part 1. In practice there is another part: the political stage management of the EO, and answering that deep question. This moves in parallel with the temporary suspension placed the EO by federal judges, and the potential escalation of the case to the Supreme Court, which is waiting for the appointment of its ninth (and final) judge. With President Trump’s proposed appointment of a judge who takes a literal view of the Constitution, it sets the stage for a very high level debate on whether the application of Islamic law in America (or indeed existing international human rights law on refugees), runs counter to the American Constitution.

And this could well be the purpose of the exercise. If it gets that far, it will start to draw a line in the sand about what constitutes “acceptable” citizenship and long-term residency in the U.S. That is a process that is also rapidly unfolding in Europe of course, but along a different trajectory.