Refugee ‘Religious Test’ is ‘Shameful’ and ‘Not American’ says Obama… Except that Federal Law Requires It

By Andrew C. McCarthy, NATIONAL INTEREST 

As I argued in Faithless Execution, the principal constitutional duty of the chief executive is to execute the laws faithfully. President Obama, by contrast, sees his principal task as imposing his post-American “progressive” preferences, regardless of what the laws mandate.

In his latest harangue against Senator Ted Cruz (R., Texas) and other Americans opposed to his insistence on continuing to import thousands of Muslim refugees from Syria and other parts of the jihad-ravaged Middle East, Obama declaimed:

When I hear political leaders suggesting that there would be a religious test for which a person who’s fleeing from a war-torn country is admitted … that’s shameful…. That’s not American. That’s not who we are. We don’t have religious tests to our compassion.

Really? Under federal law, the executive branch is expressly required to take religion into account in determining who is granted asylum. Under the provision governing asylum (section 1158 of Title 8, U.S. Code), an alien applying for admission must establish that … religion [among other things] … was or will be at least one central reason for persecuting the applicant.

Moreover, to qualify for asylum in the United States, the applicant must be a “refugee” as defined by federal law. That definition (set forth in Section 1101(a)(42)(A) of Title , U.S. Code) also requires the executive branch to take account of the alien’s religion:

The term “refugee” means (A) any person who is outside any country of such person’s nationality … and who is unable or unwilling to return to … that country because of persecution or a well-founded fear of persecution on account of … religion [among other things] …[.]

The law requires a “religious test.” And the reason for that is obvious. Asylum law is not a reflection of the incumbent president’s personal (and rather eccentric) sense of compassion. Asylum is a discretionary national act of compassion that is directed, by law not whim, to address persecution.

There is no right to emigrate to the United States. And the fact that one comes from a country or territory ravaged by war does not, by itself, make one an asylum candidate. War, regrettably, is a staple of the human condition. Civil wars are generally about power. That often makes them violent and, for many, tragic; but it does not necessarily make them wars in which one side is persecuting the other side.

In the case of this war, the Islamic State is undeniably persecuting Christians. It is doing so, moreover, as a matter of doctrine. Even those Christians the Islamic State does not kill, it otherwise persecutes as called for by its construction of sharia (observe, for example, the ongoing rape jihad and sexual slavery).

To the contrary, the Islamic State seeks to rule Muslims, not kill or persecute them. Obama prefers not to dwell on the distinction between the jihadist treatment of Muslims, on the one hand, and of Christians, Jews and other religions, on the other hand, because he — like much of Washington — inhabits a world in which jihadists are not Islamic and, therefore, have no common ground with other Muslims … notwithstanding that jihadists emerge whenever and wherever a population of sharia-adherent Muslims reaches critical mass. But this is sheer fantasy. While there is no question that ISIS will kill and persecute Muslims whom it regards as apostates for refusing to adhere to its construction of Islam, it is abject idiocy to suggest that Muslims are facing the same ubiquity and intensity of persecution as Christians.

And it is downright dishonest to claim that taking such religious distinctions into account is “not American,” let alone “shameful.” How can something American law requires be “not American”? And how can a national expression of compassion expressly aimed at alleviating persecution be “shameful”?