Reflections on the prejudice in the draft Exec Order’s vetting of “prejudice”

On ABC News Wednesday night, President Donald Trump once again said that people coming into the United States would be subjected to “extreme vetting.” I think his expected executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” gives some clues as to how this would be done.  This is necessarily a tentative take since the President has not yet issued the order.

Section 4 of the order requires the Secretaries of State and the Department of Homeland Security and the Directors of National Intelligence and the FBI to “implement a program during the adjudication process for immigration benefits to identify individuals seeking to enter the United States on a fraudulent basis, with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.” Among other things, the program should have mechanisms to evaluate

  • the applicant’s likelihood of becoming a positive contributing member of society, and
  • the applicant’s ability to make contributions to the national interest.

I’ve been puzzling over the question of how exactly immigration officials are supposed to figure out these rather subjective criteria. The answer may lie in an earlier part of the order, the Statement of Purpose, which says:

“In order to protect Americans, we must ensure that those admitted to this country do not bear hostile attitudes toward our country and its founding principles. We cannot, and should not, admit into our country those who do not support the U.S. Constitution, or those who would place violent religious edicts over American law. In addition, the United States should not admit those who engage in acts of bigotry and hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice other religions) or those who would oppress members of one race, one gender, or sexual orientation.”

As an initial matter, it’s not clear to me whether this provision applies only those seeking to live in the United States or also to those applying for visas and that could certainly affect how one views its strictures.

While its generally straightforward to determine whether someone has been convicted of a serious crime (whether an honor killing or a murder) and will not be permitted entry into the United States, the other questions posed by the order are not easily answered. For example, does the required support of the U.S. Constitution mean that someone seeking to visit the country as a tourist or a student must know and be fully on board with its provisions and how they are understood by our courts? Could you exclude a European who believes strongly in gun control because the 2nd amendment has been interpreted to encompass an individual right to bear arms? Is a Muslim man whose wife and daughters wear hijab oppressing them?  Is it an act of bigotry – which Merriam-Webster defines as being “obstinately or intolerantly devoted to [one’s] own opinion and prejudices” – to hold the view that your own faith is the correct one? You get the picture.

The list also reflects behaviors that are often associated with Muslims. “Those who would place violent religious edicts over American law” is an obvious reference to jihad (and in some minds, especially in Trump’s inner circle, it is likely a reference simply to Islamic law). It may reflect the view that Muslims can’t participate in democratic societies because they hold to a higher law (which of course ignores the hundreds of millions of Muslims who vote in elections around the world). Honor killings are mainly considered a problem in Muslim societies. Same with persecution of minority religions, and discrimination against women in the way this draft was likely intended.

To be clear, I’m neither arguing that these things happen only or even mostly in Muslim countries or that they are not in and of themselves reprehensible and in some cases criminal. My point is simply that in the popular Western imagination many, if not all, the things listed in this order that would exclude someone from the United States are associated with Islam. This apparent “values test” is thus consistent with the overall thrust of the order, which is to make it more difficult for Muslims to come to the U.S.

One last point: how on earth are immigration officials supposed to figure this stuff out? As it stands, getting a visa to the United States from most Muslim-majority countries is difficult. Trying to suss out whether someone is a bigot is going to take a lot of time and digging. At the very least it will require an in-person interview, which may be why the order eliminates the possibility of waiving this requirement and directs the Secretary of State, subject to resources, to “immediately expand the Consular Fellows Program” making more officials available to adjudicate visas. Surely taxpayers’ money and federal officials’ time can be better spent.

 

Image: Spencer Platt/Getty

 

About the Author(s)

Faiza Patel

Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, Former Senior Policy Officer at the Organization for the Prohibition of Chemical Weapons Follow her on Twitter (@FaizaPatelBCJ).