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Photo by Mark Taylor | CC BY 2.0

The ink on Donald Trump’s executive order barring Muslim immigrants from the U.S. is barely dry, but that’s all the more reason to begin calling for his impeachment. If it only took a week for him to issue a blanket ban on immigrants, how much damage he can do to civil liberties and the Constitution over the next few months or year? As the New York Times reported on January 28th, Trump issued an executive order banning all Muslim refugees from Syria, in addition to all immigrants from numerous countries, including Iraq, Iran, Sudan, Libya, Somalia, and Yemen. The order mandates a 120-day ban for refugees, and a 90-day blanket bank from the countries above.

It didn’t take long for the courts and activists to spring into action. Thousands of anti-Trump activists spontaneously gathered at major airports to protest detainment of those entering the U.S., and a federal district judge in New York declared that the detainment of immigrants on U.S. soil represented a constitutional violation of equal protection under law. The judge ordered a temporary stay on government efforts to detain immigrants already in the U.S. The decision, however, did not impact Trump’s order to ban entry of immigrants currently residing on other country’s soil. Trump’s Chief of Staff Reince Priebus has already begun walking back parts of the order following the mass public outcry. Priebus has informed Americans that the ban will no longer apply to residents who possess green cards, despite the executive order and initial ban being applied against all non-citizens traveling to the U.S. from the countries in question.

Trump sought to justify the ban by framing all immigrants from these Muslim-majority countries as a potential national security threat: “We don’t want them here…We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas. We only want to admit those into our country who will support our country, and love deeply our people.” Putting aside Trump’s absurd appeals to “love” as motivating his blanket demonization of and discrimination against Muslims, various questions arise regarding the Constitutionality of his actions.

The ban appears to be a blatant violation of the 14th Amendment, which states that “no person” shall be “deprive[d] of life, liberty, or property, without due process of law,” and that the government shall not “deny to any person within its jurisdiction the equal protection of the laws.” While the 14th Amendment refers to states’ denial of liberty and equal protection, the Supreme Court has long held that equal protection and the liberty clause apply against the federal government as well. Some might question that a 14th Amendment violation is not possible for individuals not under U.S. jurisdiction, but that position is hard to defend considering Trump’s ban discriminates against Muslim refugees who were already on U.S. soil. Clearly these individuals fall under “U.S. jurisdiction” if they are on U.S. soil.

Of direct relevance to these two Constitutional clauses is Trump’s declaration that Syrian Christians have been “horribly treated” by the Syrian and U.S. governments, and his claim that under Obama, “If you were a Muslim you could come in, but if you were a Christian, it was almost impossible…I thought it was very, very unfair. So we are going to help them.” This announced preference for admitting Syrian refugees based exclusively on religious identity, rather than due to a demonstrated, documented terrorist threat, is as blatant a violation of the equal protection clause as I can think of. Furthermore, denying a victim of war entrance simply based on their religious identity is an obvious infringement upon the First Amendment’s mandated separation of church and state, particularly when Trump seeks to distinguish between the legitimacy of refugees within a country based simply on religious identity.

The First Amendment states that government must be agnostic in its dealings with individuals, neither favoring nor inhibiting religious freedom. It states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Supreme Court, under the 14th Amendment’s guarantee of individual “liberty” has extended this protection and has also applied it against states and other parts of the federal government. To use religion as one’s criteria for distinguishing between refugees is unconstitutional, and grounds for impeachment.

Trump’s actions do not carry the force of law. Executive orders are not, constitutionally speaking, a substitute for Congressional laws. They carry no legal authority. While attempts to govern via unilateral executive “authority” are not new to Trump, his attacks on Muslims immigrants are certainly one of the most extreme attempts of a president to circumvent the law. Scholars and intellectuals have warned for years of the rise of the imperial presidency, with executive orders used in previous administrations to deny U.S. detainees due process and to target alleged terrorists for illegal drone strikes. Trump’s assault on immigrants represents an intensification of the imperial presidency.

I don’t expect appeals to evidence or reason to have any impact on Trump at this point. He’s demonstrated zero interest in considering views that run contrary to his beliefs throughout the presidential campaign, so there’s little reason to think that evidence will matter now. But a broader national discussion of the faulty premises upon which Trump’s ban is based is still needed. Trump has called for the implementation of “extreme vetting” against Syrian immigrants and refugees in the past, but this claim demonstrates a complete and willful ignorance to the reality that these refugees are already the subject to such vetting, and are heavily discriminated against. Despite estimates that the war in Syria has resulted in nearly half a million deaths and created nearly 5 million refugees, the U.S. admitted a paltry 10,000 Syrian victims of war by mid-2016, or just two percent of all refugees. And the few lucky immigrants admitted to the U.S. were already subject to a marathon interrogation, intended to sniff out potential extremists or terror threats.

As the New York Times reported in 2015, it typically took about two years for a Syrian refugee to be admitted into the U.S. During that time, each person had to make their way through a 20-step exhaustive process, which included screening by 8 different government agencies, not even counting the United Nation’s own screening, by the National Counterterrorism Center, the FBI, the Defense Department, the State Department, the U.S. Customs and Border Protection, the Homeland Security Department, U.S. Citizenship and Immigration Services, and the Fraud Detection and National Security Directorate Office. Each refugee had to complete three separate background checks, three fingerprint checks, and two security checks. As the New York Times reported, the multi-step vetting process included the following:

1/ “Registration with the United Nations.”

2/ “Interview with the United Nations.”

3/ “Refugee status granted by the United Nations.”

4/ “Referral for resettlement in the United States.”

“The United Nations decides if the person fits the definition of a refugee and whether to refer to the person to a country for resettlement. Only the most vulnerable are referred, accounting for fewer than 1 percent of refugees worldwide. Some people spend years waiting in refugee camps.”

5/ “Interview with State Department contractors.”

6/ “First [U.S.] background check.”

7/ “Higher-level background check for some.”

8/ “Another background check.”

“The refugee’s name is run through law enforcement and intelligence databases for terrorist or criminal history. Some go through a higher-level clearance before they can continue. A third background check was introduced in 2008 for Iraqis but has since been expanded to all refugees ages 14 to 65.”

9/ “First fingerprint screening; photo taken.”

10/ “Second fingerprint screening.”

11/ “Third fingerprint screening.”

“The refugee’s fingerprints are screened against FBI and Homeland Security databases, which contain watch list information and past immigration encounters, including if the refugee previously applied for a visa at a United States embassy. Fingerprints are also checked against those collected by the Defense Department during operations in Iraq.”

12/ “Case reviewed at United States immigration headquarters.”

13/ “Some cases referred for additional review.”

“Syrian applicants must undergo these two additional steps. Each is reviewed by a United States Citizenship and Immigration Service refugee specialist. Cases with ‘national security indicators’ are given to the Homeland Security Department’s fraud detection unit.”

15/ “Extensive, in-person interview with Homeland Security Officer.”

“Most of the interviews with Syrians have been done in Jordan and Turkey.”

16/ “Homeland Security approval is required.”

17/ “Screening for contagious diseases.”

18/ “Cultural orientation class.”

19/ “Matched with an American resettlement agency.”

20/ “Multi-agency security check before leaving for the United States.”

“Because of the long amount of time between the initial screening and departure, officials conduct a final check before the refugee leaves for the United States.”

21/ “Final security check at an American airport.”

As one can see, “extreme vetting” was already U.S. policy, meaning that Trump’s attacks on Syrian victims of war amount to a needless, toxic, racist xenophobia that is intentionally punitively-motivated, rather than driven by real national security concerns. The poverty of Trump’s warnings about alleged terrorist threats are fully exposed when one considers that there has not been a single publicized case of a Syrian refugee admitted to the United States who was found to be actively plotting, or having effectively undertaken a terrorist attack on U.S. soil.

The belief that Muslims represent some exotic or dangerous “fifth column” terror threat is driven by an “Orientalist” bigotry, which Edward Said warned has long defined American political culture. American television, film, and other popular depictions consistently depict peoples of the Middle East as foreign, dangerous others bent on undermining America’s security and way of life. In previous research, I’ve documented how those relying on mass media coverage for their information about Islam are twice as likely to embrace Orientalist stereotypes and bigotry, compared to those who gain information from other sources, such as knowing a Muslim personally.

Public opinion surveys and academic studies have long debunked the idea that Muslims represent a monolithic, extremist threat. In his book, Are Muslims Distinctive? M. Steven Fish exhaustively explores polling data and debunks the notion that Muslims are more likely than non-Muslims to support infusing religious principles into government, or to embrace political or religiously-inspired violence or terrorism. International surveys of Muslim-majority countries, as I document in detail in my previous work (Selling War, Selling Hope), demonstrate that the vast majority of Muslims throughout the world, including in the U.S., reject the use of violence or terrorism in favor of political goals. In short, the claim that Muslims should be singled out because they represent a special national security threat is not validated by available empirical evidence. Of course, Trump has no interest in the state of the academic literature on questions related to Muslim values and terrorist threats. He is the product of a lobotomized popular culture that bases its fear of Muslims on blatant Islamophobic propaganda films such as Arnold Schwarzenegger’s True Lies and Disney’s Aladdin, rather than relying on a reasoned engagement in available evidence.

There is little reason to think that Republicans in Congress will oppose on principle Trump’s illegal ban on Muslim immigrants. The party has long trafficked in Islamophobic stereotypes and racism, as seen in official rhetoric and racist portrayals via rightwing media. Protests of the Trump administration must continue and intensify, if there is to be any real momentum in favor of impeachment. The legal case against the president is growing by the day. The question is how long the public and political officials will wait to hold Trump accountable for his contempt for the Constitution and principles of equality. The assault on the rule of law grows more extreme the longer we wait.

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