Trump’s Muslim Travel Ban and the Future of ‘Alternative’ Constitutionality

With cabinet members, supporters, and appointees abound, President Trump inspects the executive order handed to him by a nearby aid with a stultified mien. Finally finding the title, he reads it loudly for the cameras, proudly looking around the room at an audience we cannot see. ‘Executive order protecting the nation from foreign terrorist entry into the United States!’ he triumphantly proclaims. ‘We all know what that means…’ He trails off with a smirk, seeming as if he wishes to continue, but settles for a flourish of his pen and his classically exaggerated showing of the order to the oval office. This has been Trump’s routine for the last eight executive orders signed in his first weeks of office – unrehearsed, frequently stumbling praise of the order’s intent, followed by climactic signing. His descriptions rarely reflect the substance of the orders or the public resistance. This order in particular turned out to hold significant weight, barring any immigration or non-visa backed travel to the United States from seven particular majority Muslim countries found to ‘bear hostile attitudes toward [the US] and its founding principles.’

Image courtesy of Quinn Norton ©2017, some rights reserved.
Image courtesy of Quinn Norton ©2017, some rights reserved.

But do ‘we all know what that means,’ as Trump says we do? Many supporters insist on its implementation as a matter of life and death, or on its impermanence, that it only exists ‘just until we figure out what’s going on,’ but it means none of these things. The executive order targets a specific religion blanket-banning Muslim travellers and refugees based solely on what is perceived as a hostile faith. Trump’s decision has dominated broadcasting space from its signing, to massive airport demonstrations, stories of unification and separation, and finally to its recent suspension by a federal judge and the handing back of the 60,000 previously revoked visas by Homeland Security. Although this final ruling is hailed as a victory for the US system of checks and balances, and celebrated as an end to what was widely seen as a gross abuse of power, it is important to both recognize the potential for pushback by the Trump administration, and what this order means for the future of the US. The order’s founding principle seems to have broken a barrier in both the domestic and international community that many did not expect from an American government.

In the wake of the government’s appeal for the reinstatement of the ban, as well as the rejection of said appeal, the Trump administration has continued to fervently deny all claims of religious targeting. It is now up to the Supreme Court to decide on its constitutionality, and it isn’t hard to see Trump’s obvious violations of both law and his own assertions. To begin with, this travel ban obviously targets Muslims populations, fulfilling a campaign promise first articulated by Trump himself. Extensive evidence of Trump’s belief in Islam as a violent religion, his assertions that Muslim women are always ‘treated horribly’ (including Ghazala Khan, the Gold Star mother of Army Captain Humayun Khan), and his claim that one must assassinate the families of people deemed to be threats to the US, provide a backdrop to what can only be described as unfounded antipathy towards Islam. However, the most distinct evidence is the President’s explicit and frequent assertion that Christians in Muslim countries are frequently persecuted and deserve special treatment when it comes to visa issuance. This preference unmistakably comes to bear in the text of the executive order:

‘The Secretary of State … is further directed to make changes to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.’

Being that the travel ban targets the predominantly Muslim countries of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen, it is impossible to identify a Muslim immigrant as a victim of religious persecution. In fact, Shiite Muslims are executed and targeted by ISIS more frequently and on a larger scale than Christians living in these countries. However, it is this very targeting of specific countries, and not the explicit mention of a religion in the text of the executive order that many supporters cite as evidence of legitimacy – accompanied especially by the mention of former President Barack Obama. In an ingenious move by Trump’s administration attempting to eliminate any accusations of preference, countries chosen by the ban were pulled from those chosen as subject to tightened visa and travel access by President Obama in 2015. This is frequently and erroneously cited as ‘Obama’s travel ban’ by the executive action’s supporters in attempt to palliate its effects.

But the immigration order does not escape obvious conflict of interest. It is strikingly obvious that in the context of terrorism there are vital countries missing from this ban. Egypt, Saudi Arabia, and the United Arab Emirates were excluded from the ban, despite a report from the Cato Institute showing that these three countries ‘accounted for 94.1 per cent of all American deaths in terrorist attacks on U.S. soil committed by the foreign-born.’ The executive order directly describes the 9/11 attacks on the World Trade Centers as an example of failed immigration screenings, although 18 of the 19 people responsible for the attacks hailed from these three excluded countries. A senior Trump official similarly used the San Bernardino shooting to justify the ban, regardless of the fact that the ban would not have stopped the attackers either. It seems confusing and counterproductive to Trump’s case, at least until one views his recently released financial disclosure forms (not the President’s tax returns, these are simply legally required and very incomplete summaries of his business holdings). The travel ban does not include countries where he has business interests. Golf courses and LLCs in Dubai, two Trump Towers in Istanbul, and business holdings in Egypt – it is clear Trump wishes to protect these countries, even if it is from himself.

With these contentions taken into account, the legality of this executive order are patently called into question. Although Trump claims eligibility according to a 1952 law that allows national discrimination, that law was superseded by congress in 1965. Stating that ‘no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence’ (the exception involves congressional approval, and even then dire national interests must be at stake), the law clearly prohibits any direct action by the president that disallows the obtaining of a visa based on nationality. It is interesting to note that Trump’s executive order contains phrases very similar to the aforementioned:

‘In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.’

Trump himself has violated multiple aspects of his own law, with multiple allegations of sexual assault and a now famous audio recording of him describing alleged sexual harassment. In many ways his nationality-based ban, as has been asserted above, can be described as persecution of those ‘who practise religions different from their own.’ A presidential executive order cannot maintain its basis in bigotry and preferential business treatment, and therefore must be found unconstitutional by the United States Supreme Court. This is simply a necessary action, but if fulfilled, the result will not be as successful a victory as many make it out to be – damage may have already been done.

Not only this, but a look at President Trump’s response to his order’s suspension reveals a startling and foreboding look into the future of his administration. Besides his rapid dismissal of US Attorney General Sally Yates, who openly defied him by refusing to legally defend the executive order, Trump’s response on Twitter held significant insight into his flawed idea of checks and balances. Trump tweeted after the executive order was halted by Bush-appointee Judge James Robart and visas returned, ‘The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!’ While it is understandable to question the reasoning and legitimacy of the action taken by the judge, it is profoundly dangerous to undermine the legitimacy of the US judiciary. In another tweet, Trump exclaimed, ‘what is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into US?’ The country has not ‘come’ to anything – the constitutional function of checks and balances by our judiciary branch is a core pillar of the very laws Trump claims to protect. These tweets, however, do not compare to the disturbing intimations of his most recent: ‘Any negative polls are fake news, just like the CNN, ABC, NBC polls in the election. Sorry, people want border security and extreme vetting.’ The implications of such a statement do not need delineation. Such behaviour can only be described as despotic and dangerously egotistical. The need to quell one’s fragile sensitivity at the expense of trust in legitimate journalism and research is undeniably on the road to autocracy.

These concerns are only compounded by the already visible effects Trump’s executive order has had on the rest of the world. Many major countries have expressed their disdain for Trump’s executive action, and the order has obviously decimated foreign relations with the countries directly involved. Besides inspiring massive country wide protests, the ban has resulted in serious consideration via petition of banning Trump from the UK by Parliament. While Trump’s previously cancelled visit will still go ahead, UK’s Speaker John Bercow has announced that he will not allow Trump to address Parliament. Finally, in the more general sense, the action has vacuously brought a face of injustice and myopic stupidity to a country with an already less-than-favourable human rights record. If Trump wishes to maintain relative good will in the rest of the world, this ban cannot stand.

For the sake of the country and simple morality, this executive action must be found unconstitutional. While such a ruling has and should be hailed as a victory, it must be seen in more of the ‘battle not the war’ sense. Extreme push back from the current administration should be unceasingly expected, and past response has proved the dangerous and unscrupulous nature of Trump’s mind. He has not been educated on matters of the US Constitution, and will therefore be surprised and, as has been seen, angry at contention. The country must protest, must demonstrate the power that checks and balances have on the executive, but must also be wary that there are many ways for Trump to exert unchecked power – in many cases to serve his business interests, but in some cases his ego. And he will. As David Frum, a neoconservative political commentator and speechwriter for President George W. Bush, has stated, ‘Trump is poised to mingle business and government with an audacity and on a scale more reminiscent of a leader in a post-Soviet republic than anything ever before seen in the United States.’ It is important to remember this, but not be afraid. To remember to resist in ways that do not aid the oppressor. To display cynicism and disapproval – to effectively break the walls of Trump’s ego. The words of American Founding Father Thomas Paine, written over 200 years ago, are in this case relevant:

‘The strength and power of despotism consists wholly in the fear of resistance.’


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