Republicans have to choose between loving the Constitution and repelling asylum seekers
The way the Trump administration has treated refugees from Central America is shameful, cowardly, and inhumane. This post is not about that, though much has been written on the topic.
Why tear gas, lobbed at migrants on the southern border, is banned in warfare
This post is about how the Trump administration’s treatment of those refugees is illegal under both international law and US law.
Refugees are not illegal immigrants. People seeking asylum are not illegal immigrants. This isn’t some radical, left wing opinion; this is settled law and has been since before the moon landing.
This makes a great deal of sense if you stop and think about it. From Nazi Germany to the Soviet Union, North Korea to East Germany, the 20th Century has been full of refugees and asylum seekers whose countries actively tried to keep them from escaping.
If these border jumpers could only find asylum at designated points of entry, then the free world would be serving as the wardens of despotism rather than cheering on the brave souls who sought to escape it.
It was in this spirit that the United Nations drafted the Convention Relating to the Status of Refugees, or the “Refugee Convention” as it is more commonly known.
Article 31 of the convention makes clear that refugees can not, by definition, be considered illegal immigrants.
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
— Article 31 of the 1951 Convention Relating to the Status of Refugees
The UN Refugee Convention was ratified by the US Senate on October 1, 1968. It is, in a very real and legally binding sense, the “Supreme Law of the Land” per Article VI of the Constitution of the United States:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby
— US Constitution: Article VI, Paragraph 2
And that’s it. That’s the ballgame. Back in 1968 the United States as a country said that refugees should be allowed to seek asylum regardless of how they crossed the border. It pledged to uphold that ideal in its own laws and, by ratifying the treaty, elevated it to at least the level of federal law if not the Constitution itself.
To then turn chemical weapons on refugees seeking a better, safer life in America is not merely a violation of the law but a violation of the rule of law. It is an assertion, by the White House, that the Presidency is truly imperial and may do as the Executive sees fit, laws, treaties, or Constitution be damned.
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