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A protest at the San Francisco International Airport against Donald Trump’s January 2017 executive order on immigration, January 28, 2017. © 2017 Creative Commons/Daniel Arauz
Donald Trump says he inherited “a mess” when he became president, but many of those messes are of his own making, as shown by his latest effort as president to make good on wild promises he made on the campaign trail.
Trump first called for “a total and complete shutdown of Muslims entering the United States” back in December 2015. The incendiary call was a major turning point in his campaign, galvanizing his base and putting him at the center of media attention.
It was patently clear, however, that a complete ban on one religion would be unconstitutional. Former New York City mayor Rudy Giuliani said Trump came to him about “the Muslim ban” and asked for help to “show me the right way to do it legally.” Shortly after securing the Republican nomination in July 2016, Trump said, “People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”

He pivoted to name several countries where Muslims live rather than Muslims per se, and to ban the entry of people from those countries in his first executive order. He temporarily banned entry from nationals of seven predominantly Muslim countries, and suspended the refugee resettlement program, while setting up a new system of extreme vetting for these, and potentially other, groups.

But, as pointed out in an amicus brief challenging the order from 10 top national security figures, including former secretaries of State and Homeland Security, and former CIA and NSA directors, “since 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order.”

One of the courts staying the first order noted that the government had “not offered any evidence to identify the national security concerns that allegedly prompted this EO, or even described the process by which the president concluded that the action was necessary.”

The revised order does try to cook up evidence to support a national security need—boilerplate descriptions of the six Muslim majority countries (Iraq is dropped from the list) whose nationals would be barred from entry for 90 days, as well as examples of two Iraqi refugees who were convicted for plotting terrorist activities and a Somali refugee who came as a child, became a naturalized citizen, and was convicted of another terrorist plot. The order vaguely alludes to 300 people who entered as refugees who are currently the subjects of FBI counterterrorism investigations.

While 300 people under investigation does, indeed, sound ominous, it is 0.01 percent of the 3 million refugees admitted since 1980, and there is no indication yet that any of them have actually been involved in any terrorist activities. There is also no indication of how long they have lived in the United States. If they came as children, like the Somali mentioned in the order, no amount of vetting would have predicted their potential as terror threats many years later.

Let’s not lose sight of the politics at work here. As Justice David Souter, writing for the majority, said in a case involving the display of the 10 Commandments in the McCreary County courthouse in Kentucky, “The world is not made brand new every morning.” The Supreme Court was not willing to confine its purview to the display per se, but rather looked at prior statements and actions of local officials who had made clear their intent to favor Judeo-Christian precepts over other religions.

The same principle applies to the revised executive order. Though cleansed of overt references to Muslims—while continuing to use code words like “honor killings”—the order is still contaminated by Trump’s campaign rhetoric and promises. As Justice Souter reminds us, that cannot be forgotten or ignored. On March 9, Washington State’s Attorney General, who successfully filed suit against the first order, said that “the core constitutional problems remain the same.”

To gain the presidency, Trump employed classic scapegoating tactics to whip up fear of refugees “pouring into our country” through the “Trojan horse” of the US refugee resettlement program and of Muslims, whom he broadly conflated with terrorism. His continuing ham-fisted efforts to tar all members of entire nationalities and to vilify refugees have less to do with protecting the country against actual threats than proving that he meant what he said during the campaign.

While great latitude remains for the president to take reasonable steps to screen would be immigrants and to choose which and how many refugees to admit, he has cast doubt on his own authority to do so by introducing noxious prejudice into the equation.

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