Trump’s Divisive New Travel Ban

Who is affected by President Donald Trump’s “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States,” which he issued on Monday morning? A better question to ask might be who isn’t touched by it, here or abroad. An earlier version of the order, which Trump signed on January 27th and judges on the Ninth Circuit blocked two weeks later, banned people from seven Muslim-majority nations and all refugees. This one drops Iraq from the list. It also makes less of a point of Syrian refugees being people whom the United States particularly does not want. And it offers exemptions to several groups, most notably people who have green cards or had visas as of January 27th. The goal, in other words, is to carve out exceptions, at least for the moment, for people who have the most obvious routes to challenge the order in court and for some whose plight is particularly conspicuous, such as translators who worked for the U.S. in Iraq, to whom many in the military (and beyond) feel a debt of honor. It’s the just-don’t-touch-me-or-mine version of the order, which means that the question of whether it constitutes a religious test—a constitutional violation that would, as a matter of law, harm every American—is joined by another: How much power does President Trump have to divide people, and how willing are Americans to play along?

In speeches and in interviews, Trump and his aides have presented these executive orders as a down payment on his campaign promise to institute a “complete and total ban” on the entry of Muslims into the United States. At times, he has been explicit about downplaying that goal in order to get the ban past the courts. (“Call it territories, O.K.?”) Nonetheless, Trump claims, in the new order, that neither it nor the previous one provides "a basis for discriminating for or against members of any particular religion,” despite its genesis, despite the countries selected, and despite the promise, in the earlier version, to favor religious minorities (which, in the case of these countries, would mostly mean Christians or Jews) if and when the refugee problem was revived. The order will go into effect on March 16th. As it happens, that is just a few days before Neil Gorsuch begins his confirmation hearings for a seat on the Supreme Court. Senators should ask him how his originalist, text-based view of the Constitution and the law would deal with a President who lies about whom he is targeting and why. If the order gets through the courts—and this version has a better chance than the last one—Trump is likely to use it as a building block for more of the same; so could future Presidents. The Republican Party, meanwhile, continues to bend to Trump: Speaker of the House Paul Ryan said on Monday that the order “advances our shared goal of protecting the homeland.” So do the supposed institutional figures in the Cabinet: Secretary of State Rex Tillerson called the new order “vital.”

The ten-day delay in implementing the order is designed, at least in part, to avoid the chaos of mid-flight visa revocations that the first order caused. At the same time, it casts doubt on the Administration’s argument, in court, that the original order was an emergency measure. Trump himself has complained that, without an element of surprise, bad men would rush to get in before the order was enforced, and he has complained that the judges who delayed the order would be to blame for any terrorist attack in the interim. The discrepancy is partly accounted for, in the new order, by presenting the immediate measures as a convenient jump start of a larger process for keeping many more people out. The list of six countries, the new order says, is meant to "temporarily reduce investigative burdens” that this larger overhaul will involve.

In both orders, all the bans are framed as temporary, but both suggest that what will follow the temporary period will be greater restrictions, not lesser ones. Indeed, such an expansion comes close to being a directive in the new executive order. It calls for the Department of Homeland Security, in consultation with the State Department and other agencies, to begin "a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country" in order to determine that a person who is seeking an immigration benefit "is not a security or public-safety threat.” The D.H.S. would have twenty days to figure out what information it needed, and then the country in question would have fifty days to start providing it. At the end of that period, the D.H.S. "shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation”—a new list of places suspected of producing bad people. All countries already, and properly, supply data about their citizens, at least in the form of a passport. What more might the Trump Administration decide that it needs to know about the associations, or even about the faith, of a foreign citizen, and what might that country decide is worth sharing? This particular aspect of the executive order may not cause it problems in American courts. But there is a fair chance that it means that, soon after the order goes into effect, other countries may also have to consider, in new ways, how they want to discriminate between and against their citizens.

President Trump, it is clear, has a definition of “Foreign Terrorist Entry”—the phrase in the title of the executive order—that includes the entry of people who have not been involved with or even contemplated committing terrorist acts. In the new order, in a paragraph listing the potential dangers that Trump seeks to avoid, he gives the example of "a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen” and was convicted of planning an attack on a Christmas-tree-lighting ceremony in Portland. (The person Trump was referring to, Mohamed Mohamud, came to the United States as a toddler; it was more than a decade and a half later, as a nineteen-year-old, that he was caught up in a sting operation.) The threat he sees, in other words, is a demographic one: not who these people already are but who Trump imagines they are bound to become. Plenty of American-born children also grow up to commit crimes; Trump’s concern here, though, is to increase the fear and suspicion of families that he regards as looking foreign. The result is a more limited definition of who can ever be American. In this sense, the executive order ought to be read not only in conjunction with Trump’s statements on Muslims but in light of the alarmingly broad deportation priorities that the D.H.S. issued last week.

The new executive order includes a section on “transparency,” which orders government agencies to publicize crimes by noncitizens, mentioning in particular “honor killings” and other crimes against women. (This raises the question of why Trump’s Republican allies have been so resistant to the collection of data on gun crimes, which play an outsized roll in domestic violence.)  When Trump speaks of the order, he talks about the need to keep out immigrants who don’t “love” us—a word he used in last week’s address to Congress—or whose values differ from ours. And, in a way, his railing about the danger to the country points to the bottom-line question about the executive order, and about Trump himself: What are our values, and the things that we love about America? And what do we do when a President, wielding falsehoods and fearful conspiracy-laced stories, tosses them aside?

Leave a Reply

Your email address will not be published. Required fields are marked *