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Trump’s Muslim Ban is Not at All About Terrorism

An executive order that seeks to ban Muslims from the country violates the Constitution; a refusal to comply with a court’s ruling on the matter subverts the rule of law and sets up a constitutional crisis.

January 31, 2017

Cross-posted from Fortune

For anyone who hoped that Pres­id­ent Donald Trump would walk back his most radical campaign prom­ises, Friday’s exec­ut­ive order on immig­ra­tion should dispel any remain­ing illu­sions. While at first blush it might seem that a prohib­i­tion on immig­ra­tion from seven Muslim-major­ity coun­tries falls short of a true “Muslim ban,” it is in fact exactly that. But the admin­is­tra­tion’s actions don’t just consti­tute reli­gious discrim­in­a­tion; they also threaten U.S. national secur­ity and the rule of law.

The order, of course, is not framed as an attempt to exclude Muslims from the U.S. It instead purports to address a terror­ist threat eman­at­ing from seven coun­tries—Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—by tempor­ar­ily banning migra­tion from those nations. Its stated purpose is “to protect [Amer­ican] citizens from foreign nation­als who intend to commit terror­ist attacks in the United States.”

The flaw in this logic is that no terror­ist attack in this coun­try has ever been carried out by an Iraqi, Libyan, Sudanese, Syrian, or Yemeni immig­rant. The attacks of 9/11, by far the most deadly terror­ist attacks on U.S. soil, were planned and executed by nation­als of Saudi Arabi­a—a coun­try conspicu­ously miss­ing from the list, along with other Muslim-major­ity coun­tries in which Trump has busi­ness interests. While an Iranian national and a Somali national were respons­ible for non-fatal attacks in 2006 and 2016, respect­ively, this hardly justi­fies a blanket ban on immig­ra­tion from those coun­tries, let alone five others.

Given their instabil­ity and internal viol­ence, the Obama admin­is­tra­tion desig­nated these seven nations “coun­tries of concern,” as Trump offi­cials point out. But for exactly that reason, entry into the U.S. by people who have visited those coun­tries—as well as their citizens—is already care­fully controlled and subject to a rigor­ous admis­sions process. The dearth of domestic terror­ism asso­ci­ated with immig­rants from those coun­tries is a test­a­ment to the success of this approach.

It is not diffi­cult to ascer­tain the true purpose of this order: to dramat­ic­ally restrict the entry of Muslims into the coun­try. After all, during the campaign, Trump origin­ally called for a “total and complete shut­down of Muslims enter­ing the United States.” After real­iz­ing that an overt “Muslim ban” would invite consti­tu­tional attack, he began fram­ing the ban in terms of nation­al­ity rather than reli­gion. But both Trump and one of the ban’s archi­tects, Rudy Giuliani, bluntly admit­ted that the goal remained the same.

Any doubt about the order’s reli­gious focus is erased by another provi­sion: the 120-day suspen­sion of refugee admis­sions from any coun­try, and the indef­in­ite suspen­sion of refugee admis­sions from Syria. The order allows case-by-case waivers for people claim­ing reli­gious perse­cu­tion, but accords pref­er­ence to those who belong to a “reli­gious minor­ity” in their coun­try. In an inter­view with Chris­tian Broad­cast News, Trump confirmed that this language was designed to prior­it­ize the claims of Chris­tian refugees over those of Muslims.

Such prior­it­iz­a­tion is illegal. Govern­ment actions that create a pref­er­ence for some reli­gions over others viol­ate the First Amend­ment’s estab­lish­ment clause, as well as the Four­teenth Amend­ment’s guar­an­tee of equal protec­tion. Even though courts have not defin­it­ively resolved the extent of foreign­ers’ rights in this context, an offi­cial expres­sion of reli­gious bias has obvi­ous effects on Amer­ic­ans as well, stig­mat­iz­ing the prac­ti­tion­ers of the disfavored reli­gion and creat­ing a chilling envir­on­ment for their reli­gious prac­tice and expres­sion.

While Congress has given the pres­id­ent broad author­ity to exclude classes of aliens from entry into the U.S., that author­ity does not over­ride the Consti­tu­tion. Across the coun­try, federal judges signaled their recept­ive­ness to consti­tu­tional chal­lenges, issu­ing tempor­ary orders prohib­it­ing the admin­is­tra­tion from turn­ing back arriv­ing immig­rants.

Consti­tu­tion­al­ity aside, the order will have severe human­it­arian impacts. During the siege of Aleppo, intense media cover­age provided Amer­ic­ans with daily remind­ers that chil­dren were starving to death and being buried alive under rubble. The constant cover­age has ceased, but the death and suffer­ing continue in areas across Syria and other war-torn nations. Trump’s order cuts off the small avenue of relief that the U.S. refugee program offered.

The order’s discrim­in­at­ory intent and the hard­ships it will cause are acutely prob­lem­atic in their own right—but they will also make us less safe. Although they differed widely in their approaches to coun­terter­ror­ism, Pres­id­ents George W. Bush and Barack Obama both took pains to avoid any appear­ance of tarring the entire Muslim reli­gion with the terror­ism brush. They under­stood that such a message would be a boon to terror­ist groups seek­ing to recruit new members, and would alien­ate Muslim­s—both inside and outside the U.S.—whose cooper­a­tion is vital to coun­terter­ror­ism efforts.

Bush’s and Obama’s concerns have proven well-foun­ded. The Islamic State and other terror­ist groups imme­di­ately seized upon the order as evid­ence that Amer­ica is anti-Muslim, broad­cast­ing it far and wide through social media to help win new adher­ents. In the mean­time, govern­ment offi­cials and other secur­ity experts fear that the order will strain crit­ical rela­tion­ships with part­ners over­seas, includ­ing those who fight along­side U.S. forces or provide other vital support to our coun­terter­ror­ism efforts.

What happens when a pres­id­ent issues an exec­ut­ive order that is uncon­sti­tu­tional, inhu­mane, and danger­ous? In a prop­erly func­tion­ing demo­cracy, vari­ous checks on exec­ut­ive power­—in­clud­ing public pres­sure, an inde­pend­ent Justice Depart­ment, judi­cial review, and legis­lat­ive over­sight—­would kick in. Early indic­a­tions, however, suggest that Trump may not honor these demo­cratic and consti­tu­tional constraints.

The Trump admin­is­tra­tion’s response to the imme­di­ate and massive public outcry was to deny its exist­ence. When protest­ers filled airports and air travel slowed to a crawl, Trump blamed Delta airlines system outages. As crowds of thou­sands took to the streets in towns across the coun­try to protest the order, a Trump offi­cial repor­ted that the ban’s rollout was “a massive success story.” The admin­is­tra­tion simply wished away the mass demon­stra­tion­s—the reverse version of Trump’s false claim that 1.5 million people atten­ded his inaug­ur­a­tion.

Trump’s indif­fer­ence to the popu­lar will seem­ingly extends to the rest of the govern­ment. In a remark­able turn of events, acting Attor­ney General Sally Yates announced that the Justice Depart­ment would not defend the ban. Such an action is unusual but not unpre­ced­en­ted. The Justice Depart­ment has a tradi­tion of inde­pend­ence that helps to ensure that exec­ut­ive offi­cials are not above the law. Accord­ingly, politi­cians from both parties (includ­ing Trump’s attor­ney general nominee Jeff Sessions) routinely acknow­ledge that it is the attor­ney gener­al’s job to tell the pres­id­ent when he has gone too far. When Yates performed this crit­ical rule-of-law func­tion, Trump promptly fired her.

Even more disturb­ing, Trump is liter­ally ignor­ing the courts and members of Congress. When a judge ordered the admin­is­tra­tion to provide access to attor­neys for green card hold­ers detained at one airport, the admin­is­tra­tion refused to comply. Accord­ing to lawyers at that airport, customs offi­cials who were showed copies of the court’s order replied simply, “It’s not going to happen,” and then refused any further commu­nic­a­tion with the attor­neys. When members of Congress came to the airport and asked to speak with customs offi­cials, they were denied.

This is no mere inter-branch squabble. For over 200 years, it has been well under­stood that our Consti­tu­tion gives courts—not the exec­ut­ive branch—the final word on what the law permits. Deny­ing this basic author­ity raises the consti­tu­tional stakes. An exec­ut­ive order that seeks to ban Muslims from the coun­try viol­ates the Consti­tu­tion; a refusal to comply with a court’s ruling on the matter subverts the rule of law and sets up a consti­tu­tional crisis. A mere 10 days after Trump’s inaug­ur­a­tion, there are alarm­ing signs that this is exactly where we are headed.

(Photo: Flikr/rchap­po2002)