David Markoff '17
Last week John Kurtz wrote an article attempting to dispel some “myths” he perceived were being spread around social media regarding the new administration’s “Muslim Ban.” Mr. Kurtz holds himself to be above the obnoxious poster and misleading hashtaggers and hopes to help us overcome our polarization by addressing supposed fictions. Yet, Mr. Kurtz’s article appears less like mythbusting and more like the sharing of the latest Tomi Lahren video, filled with its own myths and misdirections.
Trump’s Executive Order is a Muslim Ban
A favorite argument of the ban’s defenders is that it can’t possibly be a Muslim ban because it only covers twelve percent of the global Muslim population. There is no disputing that the ban does not cover the majority of the Muslim world, but that is irrelevant! The focus should not be on the global Muslim population, but on the portion that is actively seeking to come to the United States. When we begin to look at the seven nations as a proportion of Muslims actually seeking to come to the United States, the numbers are drastically different. For example, in 2016 there were 38,901 Muslim refugees admitted to the United States. Out of those, more than half come from just two nations: Syria and Somalia, which are both on the list. Another twenty percent came from Iraq, also on the list. Add in the other countries on the list, and we are looking at a ban that applies to eighty to ninety percent of the Muslim population that seeks to come to America as refugees. The numbers are not as drastic when it comes to other form of visits and immigration. However, the ban narrows in on the countries that have large numbers of people coming to the United States. There are about twice as many grants of lawful permanent resident status to Iraqis than to the citizens of Indonesia, Turkey, Saudi Arabia, and Lebanon combined. So, no Mr. Kurtz, if the President wanted to ban Muslims he would start with the seven countries listed, and not Indonesia.
Mr. Kurtz asserts the ban is clearly motivated by national security concerns. Clear to whom? Not to Mr. Kurtz who says “[t]here is, however, good reason for many Americans to doubt the sincerity of the president’s motivations in signing this order,” nor to me. Both the executive order and Mr. Kurtz cite the tragic events of 9/11, carried out by Saudi, U.A.E., Egyptian, and Lebanese nationals (all not on the list) coordinated largely out of Afghanistan, (also not on the list). Perhaps, the ban is better justified by the Boston Bombings carried out by brothers of Chechen descent or the San Bernardino shooters with ties to Pakistan, also not on the list. Perhaps, justification could be found in Bowling Green or Atlanta, because why not make up the attacks as well? Even if there were an attack by a refugee from one of the listed nations (there hasn’t been), and we ignore how absurd it is to judge a whole group of people, including some of our classmates and their families, based on the action of individuals, it is still unclear whether this ban improves national security. In fact, this ban may do more harm to our national security than any benefit it may hypothetically provide. The ban is possibly one of the best recruitment tools the US has given ISIS since the invasion of Iraq. Further, the ban hinders our ability to prevent attacks because gathering intelligence from allies and people on the ground will become more difficult as the ban undermines what goodwill we have in the region, as well as one of the best promises we can make to allies: that they will be able to come to America.
When a ban, with what appears to be minimal at best security justifications, affects the majority of Muslim refugees seeking to enter our nation, when the President promised a ban on Muslims during his campaign, when the President’s advisors say they sought to find a legal way to have a ban, and when the President says in the order that the government will, in the future, favor religious minorities and then the next day says that he wants to favor Christians, let us call the ban what it is, a Muslim ban. The fact that it is temporary is no defense; we all know that temporary things can easily become permanent when it comes to the government.
These restrictions on immigration are unprecedented.
I agree with Mr. Kurtz that the United States is no stranger to turning away refugees in need, like when it sent a ship full of Jewish refugees back to Europe where many would later perish at the death camps. However, Mr. Kurtz does not argue in such negative light but instead yells “But Bush; But Obama!” in hopes to distract us from the real issue, and in doing so, takes great liberty with the accuracy of his statements.
Mr. Kurtz argues, “If the data show any one immigration policy to be a historical aberration, it is President Obama’s expansion of refugee admissions in 2016.” However, Mr. Kurtz’s own source, the Migration Policy Institute, states that the peak of refugee immigration was in 1993, when the U.S. allowed over 140,000 refugees into the nation. Further, Mr. Kurtz likens the new administration’s action with that of Obama. In doing so, Mr. Kurtz omits three key piece of information detrimental to his argument. First, Obama was responding to evidence of a direct threat, which the current government has admitted in court that it does not have. Additionally, Obama’s actions were far more limited, neither voiding multiple types of visas already issued, preventing legal residents from returning home, nor actually banning anyone from filing and proceeding with the application process. Instead, as Mr. Kurtz correctly notes, Obama’s action only suspended visa waivers, meaning that people could no longer show up and expect to be rapidly admitted in the way an American citizen is when they visit Canada or the U.K. Additionally, and unlike the new administration, Obama’s action was a response to Congressional pressure and actions, not just a solo action of the executive branch.
So, while there is truth to the argument that these restrictions are not unprecedented, instead of using it to justify the ban or distract us from the issue by inaccurately focusing on past, we should learn from our nation’s mistakes and strive to make America greater than it already is.
Trump’s executive order is clearly unconstitutional.
There is one point on which I truly agree with Mr. Kurtz, the ban is not clearly unconstitutional. Constitutionality will not be clear until a final ruling is made and both sides either exhaust their appeals or simply concede. However, Mr. Kurtz’s argument as to why the order is not clearly unconstitutional seems to conveniently skim over a number of arguments and evidence that may weigh against the administration. Neither Mr. Kurtz nor I are constitutional law scholars, so I will be brief, as this discussion is much better had with any of the numerous experts that reside within the halls of our school. I will, however, note that Mr. Kurtz seems to completely ignore the possibility that a court may look at the motivations behind facially neutral actions (Yick Wo v. Hopkins 118 U.S. 356 (1886); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)). The statements of the President, his aides, and the orders surprisingly large effect on Muslim immigration, which I mentioned earlier, will give the courts plenty of reasons to look at the order through a religious lens. Even if the courts look only at national origin, there is plenty to separate this from Obama’s action. Mr. Kurtz would have you believe that “[e]ither the Obama and Trump administrations are both breaking the law, or the Obama-era statute, which President Trump’s order explicitly invokes, has amended the 1965 statute to allow the president to implement immigration restrictions that discriminate based on nationality in the interests of national security.” However, Obama’s order was in response to a direct and concrete threat, which would add to the strength of the government’s interest. Additionally, as both Mr. Kurtz and I have already mentioned, Obama’s action was far more narrowly tailored in the nations and people it affected. As a result, it is easily conceivable the Obama’s action is legal while the New Administration’s is not. All of this does not even begin to touch on the potential Due Process concerns that arise when visas and green cards are stripped away from people. Yet I admit that I am no expert in constitutional law and that Mr. Kurtz is right that it is unclear whether a court will find this order unconstitutional.
I also agree with Mr. Kurtz that there is cause for concern about this executive order. However, it should not be limited to how green card holders were treated. It is concerning that our friends, colleagues, and classmates no longer feel comfortable visiting their families for fear that they may suddenly be banned from returning. It is concerning that this order may alienate our allies and embolden our enemies. It is concerning that the new administration seems so willing to turn its back on American values, despite little to no evidence of a threat.
I am, however, glad that this great nation refuses to take this lying down. I was glad to see thousands rush to the defense of others and to see some of our alumni work tirelessly as pro bono lawyers for those affected. I am grateful that people with attitudes like those of the lawyers and protesters at the airports were in charge of this nation when my family came, and were welcomed here from a nation capable of annihilating the United States with the push of a button.
1Pew Research Center, U.S. admits record number of Muslim refugees in 2016 (Oct. 5, 2016), http://www.pewresearch.org/fact-tank/2016/10/05/u-s-admits-record-number-of-muslim-refugees-in-2016.
2Dept. of Homeland Sec., Table 3. Persons Obtaining Lawful Permanent Resident Status By Region And Country Of Birth: Fiscal Years 2013 To 2015 https://www.dhs.gov/immigration-statistics/yearbook/2015/table3
3CNN, Trump ban is boon for ISIS recruitment, former jihadists and experts say, (Jan. 31, 2017) http://www.cnn.com/2017/01/30/politics/trump-ban-boosts-isis-recruitment/.
4New York Time, Immigration Ban Is Unlikely to Reduce Terrorist Threat, Experts Say, (Jan. 27 2017) https://www.nytimes.com/2017/01/28/us/politics/a-sweeping-order-unlikely-to-reduce-terrorist-threat.html.
5Washington Post, Trump asked for a ‘Muslim ban,’ Giuliani says — and ordered a commission to do it ‘legally’ (Jan, 29, 2017) https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-legally/; NPR, Christian Leaders Question Trump’s Promise To Favor Christian Refugees (Jan. 31, 2017) http://www.npr.org/2017/01/30/512451711/christian-leaders-question-trumps-promise-to-favor-christian-refugees.
6USHMM, The Voyage of the St. Louis, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267
7Washington Post, Trump’s facile claim that his refugee policy is similar to Obama’s in 2011(Jan. 29, 2017)https://www.washingtonpost.com/news/fact-checker/wp/2017/01/29/trumps-facile-claim-that-his-refugee-policy-is-similar-to-obama-in-2011/ .