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The imbroglio caused by President Trump’s executive order on immigration and refugees is, above all, a constitutional crisis. As was apparent in the first two days after the order was signed on Friday, the crisis pivots not only on the substantive merits of the White House action — whether or not certain classes of people can be banned from entering the United States — but the fact that the Customs and Border Protection agency is defying court orders not to enforce certain provisions of the ban. Thus, by the 10th day of the Trump presidency, a constitutional fracture was emerging that may be impervious to repair.
The order bans immigrants from seven countries deemed to be hotbeds of terrorism (Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen) for 90 days and refugees from anywhere for 120 days. The reason given for this ban is to protect the United States from terrorism. The action seems misguided for several widely cited reasons:
• No act of political violence has ever been committed in the U.S. by citizens of those countries.
• Obvious countries for inclusion — e.g., Saudi Arabia or Pakistan — are not on the list, but are places where Trump has financial investments.
• Trump’s assertion that refugees and immigrants were not properly vetted in the past is untrue; refugees, for example, go through at least two years of interviews, background checks, etc.
• Terrorism by foreigners on American soil is extremely rare.
The sheer foolishness of this ban — it will do little or nothing to enhance security — is one thing. It also does actual harm. Americans now working in Muslim-majority countries face new risks as the Muslim world again sees the U.S. government acting maliciously against their religion. This includes U.S. military personnel. As some 5,000 troops are in the fight on the ground against ISIS, the Iraqi parliament retaliated against the ban by prohibiting Americans from entering their country.
By the 10th day of the Trump presidency, a constitutional fracture was emerging that may be impervious to repair.
The executive order does not mention Muslims specifically, but it’s clearly aimed at “radical Islamic terrorism” and thus seeks to bar all Muslims of those seven nations from entering the country. (Trump adviser Rudy Giuliani admitted this on television the day after the order was signed.) Here is the first point of substantive conflict with the Constitution: discrimination on the basis of religious belief is prohibited by the First Amendment and the Establishment Clause. This will undoubtedly be challenged in court.
The manner in which travelers have in fact been detained, questioned, prevented from entry or flights and denied access to legal counsel also prohibits the due process clause of the Fifth and Fourteenth Amendments. This is, like the Custom and Border Protection’s violation of court orders, a crime of implementation rather than inherent in the executive order. But the order was inviting such insolence by its vague, broad and discriminatory language.
It is this implementation that sparks fresh worries about the Trump regime. The ban itself, for all its detestable qualities, was promised by Trump during the campaign, and will likely be overturned in court. But the process of realizing that promise has been fraught with incompetence and malevolence.
Department of Homeland Security Secretary John Kelly, a former Marine four-star general, has failed to provide clear guidance on a number of issues, including the status of permanent legal residents (green-card holders). Such residents were subject to the ban, a policy apparently attenuated but still carried out by many border agents. Reportedly, some permanent legal residents were coerced into surrendering their green cards by threats of being barred from the United States for five years. There are reports of citizens being questioned about their loyalty to their country and having their social media scanned for political opinions, all by agents under the command of Kelly.
The executive order, however, is the work of Steve Bannon, the president’s closest adviser and champion of the so-called alt-right, or white supremacists, as former editor of the extremist webzine Breitbart. It seems likely that Bannon has outmaneuvered Kelly and Defense Secretary James Mattis, an outspoken critic of a Muslim ban last summer but who was used as a willing prop at the signing of the executive order at the Pentagon. These events bode ill for future governance.
It is this implementation that sparks fresh worries about the Trump regime.
Flaunting the courts seems to be part of this dangerous game. Not only have the harsh tactics of the Customs and Border Protection agency violated court orders issued by federal judges in Virginia and Boston, which seem to apply nationally, but the White House has demonstrated its contempt for the judiciary by removing it from the White House website on a page that describes how our government works — perhaps just symbolic, but pungently so. (The courts were reinstated on the site after a social media outcry.)
The determined violation of constitutional principles in the executive order, the supine reaction of Kelly and Mattis, and the outrageous snub of court supremacy by agents of a federal law enforcement agency at the urging of the White House all signal more turbulence for lawful government ahead. It is not an exaggeration to say this is a moment of decisive peril for American democracy — a warning I never dreamed I would have to write.
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