The lawmaker who spurred Donald Trump’s sweeping temporary halt on immigrants from seven Muslim-majority countries says he told the soon-to-president last year that a so-called Muslim ban would be “borderline unconstitutional.”
Rep. Mike McCaul, the Texas Republican who heads the House Committee on Homeland Security and a member of Trump’s national security advisory team during the campaign, spoke to Trump several times about vetting proposals but was surprised when the final version differed from the draft he submitted, according to committee spokeswomen Susan Phalen.
Phalen said the order was based in part on a memo McCaul and former New York mayor Rudolph Giuliani submitted to the Trump campaign last fall in which they discussed possible ways terrorists could enter the United States and how each path could be better secured.
“The white paper did talk about the idea of a Muslim ban, but in the context of what a bad idea that was,” Phalen said. “More than half of the memo was about how borderline unconstitutional a Muslim ban would be.”
McCaul declined to make a copy of the memo available to McClatchy.
How the contentious executive order Trump signed Friday remains a key question as immigration lawyers and advocacy groups challenge its legality. Late Monday, acting U.S. attorney general Sally Yates, a holdover from the Obama administration, ordered Justice Department lawyers not to defend the order, which has been challenged in as many as 30 court cases around the country.
Yates said she had no confidence that the order was legal, though her decision is likely a temporary one until Trump’s attorney general pick, Sen. Jeff Sessions, R-Alabama, is confirmed by the Senate.
Officials tracing the creation of the order for McClatchy noted that the order is similar to a bill McCaul introduced in 2015 that called for Syrian and Iraqi refugees to go through additional vetting before being allowed into the county.
The American Security Against Foreign Enemies Act of 2015, or the American SAFE Act of 2015, called for the FBI to certify to the Department of Homeland Security and the director of national intelligence that a would-be immigrant was not a U.S. security threat. Forty-six Democrats supported the bill in the House, but it died in the Senate.
Trump’s order, which critics call a Muslim ban, froze refugee admissions and temporarily blocked people from seven nations – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – from entering the United States, even with valid visas.
Democrats and even some Republicans continued to criticize the order Monday while more than 30 lawsuits were filed on behalf of immigrants detained or barred from entering the United States. Trump defended his actions, though administration officials on Sunday backtracked on one aspect of the order and said they would allow legal permanent residents into the country.
One of the issues surrounding Trump’s order is whether it was properly vetted before Trump signed it at the Pentagon on Friday. The White House has said it was shared with everyone who needed to see it. But precisely who drafted the order, who reviewed it and what objections they raised to it are questions still to be answered.
A senior administration official with knowledge of the situation but not authorized to speak publicly said the drafting of the order began not in the White House, but on Capitol Hill, where congressional staffers with immigration portfolios wrote the initial draft during Trump’s tumultuous presidential campaign.
They then refined their proposals throughout the transition and into the start of the administration a week before Trump signed the order.
“Republicans on Capitol Hill wrote it,” the official said. “The top drafters of this were the top immigration experts on Capitol Hill.”
The president's gonna be very proactive with protecting this country. We're not gonna wait until we get attacked and figure out how we can make sure it doesn't happen again.
White House Press Secretary Sean Spicer
Trump’s teams of temporary political appointees that were deployed to the Department of Homeland Security also took part in the writing of the executive order, the official said. The so-called beachhead teams also played a role in determining how the order should be implemented.
The drafters apparently used the McCaul-Giuliani memo as a starting point.
Giuliani did not respond to a request for comment. But he told FOX News over the weekend that Trump asked him to convene a group that could design a “Muslim ban” and show him “the right way to do it legally.” The group included McCaul, former U.S. Attorney General Michael Mukasey and Rep. Peter T. King, R-N.Y.
“We focused on, instead of religion, danger – the areas of the world that create danger for us,” Giuliani said. “Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.”
It goes without saying that we sympathize with the cause of religious minorities, and persons fleeing violence and persecution. Preventing Muslims and Syrian refugees from migrating to the United States is abhorrent.
the Rev. Michael-Ray Mathews, director of clergy organizing for PICO National Network, the largest network of congregations and faith-based groups in the country
Kris Kobach, Kansas secretary of state and architect of one of the nation’s toughest immigration laws, who also advised Trump during the transition, said in an interview Monday that he, too, was “one of many people involved” in crafting the executive order.
Kobach said federal law gives the president broad authority to the restrict entry of immigrants he deems “will be detrimental to the interests of the United States.”
“It’s broad authority,” he said. “There was a similar law in place going all the way back to 1789. George Washington had the Alien Act of 1789, which also gave him the authority to exclude people that posed a risk to the United States.”
“The president is on a rock-solid legal footing,” Kobach said Monday.
The White House said the order was reviewed and vetted by the National Security Council and Homeland Security Council. Senior members of the Department of Homeland Security were also consulted. The Justice Department’s Office of Legal Council also signed off on the executive order, the senior administration official said.
“That is part of the normal transition process,” the senior administration official said.
But other reports on the order’s genesis have said it was shared with Department of Homeland Security officials only after it was signed.
Franco Ordoñez in Washington and Bryan Lowry of The Wichita Eagle contributed to this article.