It is no surprise that criticism of President Donald Trump’s second executive order on visas and refugee resettlement was so harsh. Because of the incompetent drafting and rollout of the original visa/refugee ban, the Trump administration does not benefit from a presumption of trust.
I regret, however, that so many of the critiques have characterized the second order as a “Muslim ban,” when that is neither an accurate description of its plain text nor a useful concept for those determined to fight the order as a proxy for an administration’s worldview with which they disagree.
ACLU’s National Legal Director David Cole, writing in Just Security, accurately chronicles how Trump publicly and repeatedly demonstrated his intent “to ban Muslims from entering the United States.” Cole cites comments made by former New York City Mayor Rudy Giuliani in January that strongly suggest drafters of the original order were guided by that goal.
But while an examination of Trump’s intent will assuredly be part of inevitable legal challenges, we still have in front of us the text of the second order itself, and its visa restrictions do not apply to the vast majority of the world’s Muslims (including nine of the 10 countries with the largest number of Muslim citizens). The visa restrictions also apply to non-Muslims from the six designated countries, and contain case-by-case exceptions that could (and may well) allow some visas to be issued to Muslim immigrants.
The order may be unnecessary. It may be mis-targeted. It may be “arbitrary and senseless.” It may be cruel. It may be dangerous. It may be bad public policy. But it also may be found by the courts to be constitutional, both because the redrafting has removed numerous procedural concerns in the first order and because other edits have at least complicated any assessment that it is inconsistent with the Establishment Clause.
The Broader Debate over Law and Values
Divorced hypothetically from their immediate political context, major provisions of the order might not seem so dramatic or unprecedented. Short-term pauses in visa issuance in response to security threats, especially to allow for changes to adjudication procedures, would not, I think, strike most Americans as indefensible. That is one reason there was only limited criticism of President Barack Obama’s Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.
There is also the matter of recent analogy. While the Washington Post’s Fact Checker debunked claims by the Trump Administration that the Obama Administration had halted processing of Iraqi resettlement cases for six months in 2011, a former senior Obama administration official clarified there was a significant slowdown (but not a complete halt) in response to the arrest of two Iraqi refugees on terrorism charges in Kentucky.
If the president has authority under the Immigration and Naturalization Act to restrict entry of citizens of certain countries for security reasons, the two criteria identified by the current order – risk of terrorist exploitation and a government’s unwillingness or inability to assist in determining the identity of or terrorist threat posed by visa/resettlement candidates – might seem relevant and reasonable (particularly, if the administration had selected countries of highest threat in an unimpeachable way).
If the Trump administration, citing those criteria, has determined that only Muslim-majority countries are subject to the visa restrictions, it is appropriate to ask whether the disproportionate effect results from a discriminatory purpose. But I can’t help but think that some of the critics of the Trump order might have given a different administration more latitude. And for that, the chief blame lies with the Trump White House.
The administration has offered little reassurance it does not harbor animosity towards Islam. (Language in the new order denying that the original order was “motivated by an animus toward any religion” is inadequate.) More generally, Trump has poisoned the political atmosphere with threats against his political opponents, unfounded allegations, and verbal attacks meant to undermine the judiciary, civil service, the intelligence community, and the press. He does not deserve the benefit of the doubt.
Directing Our Energies
So why do I resist piling on? After all, in a previous Foreign Policy article, I described the original Trump executive order as a “shameful failure” and denounced “the extent to which the document reads as an only slightly camouflaged ban on Muslims.”
I hesitate for three reasons.
First, as exciting as it is to partisans, the cage-match debate over the constitutionality of the order’s country-specific restrictions is not directly relevant to the security challenges facing the U.S. immigration system or the reforms needed to strengthen the refugee resettlement program.
It is a distraction of smart people and press attention from more crucial questions like “how do we ensure new residents of the United States assimilate successfully and how can we prevent both citizens and residents from radicalizing?” and “what more can we do to address the root causes of national collapse and forced migration in countries of origin?” There are technocratic solutions that could attract broad support (like these suggestions on resettlement and security, maybe), but the current legal brushfires leave less oxygen in the policymaking process for bipartisan cooperation. In a world with no resource constraints, perhaps we could do all these things– but in this world there is only a finite amount of expertise and attention to diagnose problems, craft policy solutions,and build broad, bipartisan alliances.
Second, the debate over country-specific bans is a distraction from possibly more pernicious elements of the order and its implementation. Four examples: 1) short term country-specific bans that become de facto permanent bans because the administration determines governments cannot meet identity and threat assessment standards; 2) enhanced screening procedures that are illegally discriminatory; 3) discriminatory use of case-by-case waiver authority; and 4) border enforcement implementation, by those citing the order, that is stupid and cruel.
Third, even for those impelled to oppose Trump’s view of national security as immoral and ultimately injurious to American interests, this is not propitious battlefield terrain. The arguments can too easily be caricatured as “security first” versus “fairness to foreigners first.” For Americans who don’t spend all their time reading wonky arguments about bureaucratic processes, guess which side looks more attractive?
This particular debate also creates perverse political risk incentives. If, for example, someone who might have been covered by a stayed or overturned order commits a terrorist attack, the Trump Administration will claim its hands were tied. Americans will blame those who challenged the order, even if the real cause of a particular attack is the Trump administration’s security negligence, budget cuts, or its general antagonism of Muslims. (And before Just Security’s twitter feed lights up, no, I am not saying we should acquiesce to demagoguery and accept every draconian security measure cynically described as counter-terrorism.)
The Primary Contest is over American Democracy
The challenge to longstanding norms of democratic governance presented by the Trump administration is serious, and those who share such concerns should bend all efforts to defend our institutions. But we also need to win a debate in the public square.
If we seem preoccupied with abstract debates but callous to real world insecurities, if we appear too invested in a broken status quo, if we are seen as acknowledging insufficiently the widespread anger and mistrust of government processes that propelled Donald Trump to victory, we will lose that larger and far more consequential debate.
The way forward – on the Trump executive order and politics more broadly – is the same as it has always been: to analyze carefully and without bias, engage the broadest possible audience, explain our arguments and motivations in clear terms, look for areas of cooperation across party and ideological lines, and focus our efforts on the priority battles in defense of our legal protections and values.