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What’s at stake

As I am not a lawyer, I won’t comment on the legal aspects of the hearing later today on the President’s executive order temporarily banning travel from seven Muslim-majority countries and indefinitely barring Syrians, including refuges with a well-founded fear of persecution, from entering the US. The case will presumably be decided on legal grounds, but as Madeleine Albright cogently said on NPR this morning, the policy implications are enormous:

Three things are at stake:

1. Equality: While the executive order carefully avoids singling out Muslims for the ban, it is clearly intended to favor Christians and other minorities, who admittedly often suffer significant persecution in the countries in question. There is no need to favor them. Christians and other minorities already represent a disproportionate percentage of the refugees who gain admittance to the US. What those who wrote the executive order are trying to do is establish a precedent for presidential authority to distinguish among ethnic and sectarian groups, rather than individuals. I have no doubt at all if the court rules in the Administration’s favor that the President and his minions will try again in the domestic context, perhaps going as far as to try to register Muslims. If the court denies the President the authority to make such distinctions for foreigners who have not yet entered the US, it will be hard to argue in favor of any proposal that makes them for lawful US residents and citizens.
2. Facts: The Administration has explicitly sought to establish “alternative facts,” including not only the mythical three million illegal voters but more recently also terrorist attacks in Europe that the media have hidden from the US public. Another of its alternative facts is the claim that this executive order is required to protect national security, because immigrants from the seven countries in question might conduct terrorist attacks inside the US. That is of course a possibility that has to be taken seriously. It is a major factor in the rigorous, existing vetting processes, which have ensured that not one immigrant from any of these countries has attempted a terrorist act in the US since 9/11. Of course past performance does not necessarily predict future results, but we have no factual basis on which to expect anything different, provided the vetting remains rigorous. No one has proposed anything else. If the Administration merely wanted to improve and tighten the vetting, it could have done that without a high-profile ban.
3. National security: As Madeleine and her colleagues have correctly noted, the executive order hurts national security: it will make it less attractive for both individuals and countries to collaborate against terrorism with the US, it will aid extremist recruiting, and it will damage relations with our traditional allies in Europe if not also the Middle East. It also damages travel and educational exchanges in ways that are both economically and culturally harmful: fewer students will be studying in the US and fewer Americans will venture abroad. There is no reason whatsoever to believe that the executive order will protect US national security.

A judicial ruling in favor of the government will not be the last word on these three issues. The government could win on immigration but lose when these issues arise in a domestic context, where equal treatment under the law, factual support, and real national security concerns could be treated more rationally, without reference to the broad executive authority a president wields in the international arena.

But a government win would validate Trump’s outrageous critique of the W-appointed judge who provided the temporary restraining order suspending the immigration ban and send a global message (including to our own citizens) that the US is no longer a rational actor committed to equal protection for all individuals or to factual assessment of its national security risks, but rather prefers some groups over others and exaggerates the potential for those others to threaten America.