Donald Trump’s executive orders on immigration are a bad sign for Muslims.

Donald Trump’s Executive Orders Are a Very Bad Sign for Muslims in America and Abroad

Donald Trump’s Executive Orders Are a Very Bad Sign for Muslims in America and Abroad

The law, lawyers, and the court.
Jan. 25 2017 6:43 PM

Donald Trump Declares War on Muslims

The president’s executive orders reveal his intent to fulfill his horrifying campaign promises.

U.S. President Donald Trump is joined by Homeland Security Secretary John Kelly during a visit to the Department of Homeland Security January 25, 2017 in Washington, DC.
President Donald Trump is joined by Homeland Security Secretary John Kelly during a visit to the Department of Homeland Security on Wednesday in Washington.

Chip Somodevilla/Getty Images

On Tuesday night, via Twitter, Donald Trump announced, “Big day planned on NATIONAL SECURITY tomorrow. Among many other things, we will build the wall!” Those many other things include placing limits on the number of refugees admitted to the United States to 50,000 a year (down from 100,000) and imposing a temporary ban on most refugees. Trump also intends to go after sanctuary cities in the U.S., to step up deportations dramatically, and to revisit current interrogation policies—including a possible move to reinstate black-site detention facilities operated by the CIA.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

At the center of this spate of executive orders is Trump’s campaign promise to go after Muslims simply for being Muslim. Starting with his promise to “bomb the shit” out of ISIS and his pledge to torture family members of suspected terrorists, Trump has made targeting Muslims at home and abroad a cornerstone of his political identity. He will now make it an animating principle of his presidency.

Advertisement

During the campaign, Trump proposed an all-out ban on Muslim immigration (“a total and complete shutdown of Muslims entering the United States.”) He also called for a domestic Muslim registry. Toward the end of the campaign, that pledge was tweaked—a seeming concession to the fact that a religion-based ban would clearly violate the Constitution. The pledge was changed to simply restrict all immigration from “terror-prone countries,” which is precisely what is now being proposed. Trump also began to speak of imposing “extreme vetting” on immigrants from Muslim countries, in spite of the fact that such refugees are already subject to extremely draconian procedures. At first blush, these kinds of programs are not necessarily unconstitutional, although they will be subject to immediate court challenges, and there is some reason to believe that courts will find religion-based immigration directives to be impermissible.

According to the draft executive order obtained on Wednesday by the Huffington Post, the following would happen immediately:

  1. All refugees from Syria will be denied admission to the United States in favor of being resettled in “safe areas” to be established elsewhere.
  2. All refugee processing will be stopped for what looks to be 120 days while the administration determines whether the screening provisions are adequate.
  3. There will be a blanket 30-day suspension of visas for anyone hailing from a list of unspecified countries with majority-Muslim populations (according to Reuters that will mean Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen).
  4. The claims of refugees alleging religious persecution will be prioritized “provided that the religion of the individual is a minority religion in the individual’s country of nationality,” a stipulation that will presumably be used to give preference to Christian refugees claiming persecution in majority-Muslim countries.

The country of origin ban is closely modeled on the National Security Entry-Exit Registration System, which was put in place after 9/11 and then shut down. Kris Kobach, the Kansas secretary of state and an immigration hawk, was photographed with Trump just after the election not-accidentally holding a “strategic plan” folder that appeared to revive the NSEERS program, which forced adult-age males from 25 majority-Muslim countries to register and periodically check in with immigration officers. Under NSEERS, not a single person was prosecuted for terrorist activity, although thousands were deported for overstaying their visas.

Advertisement

I asked Juliette Kayyem, who was President Obama’s assistant secretary for intergovernmental affairs at the Department of Homeland Security, why NSEERS was dismantled. Kayyem, who was on the team that ended NSEERS, says there were three principal reasons. First, changing technology, including biometrics, rendered the program irrelevant. “Entire countries is a big pool,” she offered, and it was both overinclusive and unhelpful to use national origin as a basis for exclusion. Second, by 2010 the threat of terror had changed: “We realized that this whack-a-mole approach wasn’t sufficient and that terrorists were coming from places that were our allies.” Third, she says, “Our friends hated [NSEERS]. It simply created a false narrative that we were in a holy war against our own allies.”

Another prong of Kobach’s proposed anti-Muslim strategy was to add “extreme vetting questions for high-risk aliens” including “questioning them regarding support for Sharia law, jihad, equality of men and women.” He also suggested reducing the intake of Syrian refugees to zero. Two of Kobach’s three prongs—the “extreme vetting questions” and the zeroing-out of immigration from Syria—appear likely to be enacted right away by executive order.

Vince Warren, executive director of the Center for Constitutional Rights, says these aren’t small changes to immigration policy. “In the macro sense, I am very concerned that we are moving back into a space of profiling based solely on religion and national origin,” he told me. He described the plans outlined in the executive order as “fear-based bad ideas” rather than “smart solutions to solvable problems.”

I asked Warren whether he sees it as problematic that the executive order seems to prioritize Christian refugees from majority-Muslim countries, and his reply was definitive: “By privileging Christians we are cementing the notion that the government action is based purely on religion. It’s hard to dress this all up as a purely country-based ban, when you are separating one religion against another within the same country.” Warren added that it’s “demonstrably false to suggest that we can tell what a terrorist looks like based on his religion.”

Advertisement

Kayyem raises the same concern about giving special preference based on religion. “The idea of protecting Christian minorities really is new,” she says. “As a counterintelligence expert, if we want to convince someone that there is a holy war, this is the way to do it. This idea, that Christians are more worthy than the vast majority of other victims who are Muslims, just deepens the problem.”

The one element of Trump’s immigration agenda that doesn’t seem like it will get pushed through immediately is a Muslim registry of American citizens. South Carolina Gov. Nikki Haley, Trump’s pick for U.N. ambassador, repudiated that idea in her confirmation hearings last week. She did however, suggest support for something that sounds like NSEERS 2.0. “What we need to do is make sure that we know exactly which countries are a threat, which ones have terrorism, and those are the ones we need to watch and be careful and vet,” she said. That statement contradicted the testimony of Secretary of State nominee Rex Tillerson, who had said at his confirmation hearing that while he ruled out a “blanket ban” on Muslim immigration, he would need more information before deciding whether to support a domestic registry of Muslims.

I asked Warren whether it’s time for Muslim Americans to be afraid based on Trump’s moves on immigrants from majority-Muslim lands. “I think this is the beginning of the day American Muslims have been dreading,” he replied. “This is a signal of a kind of second-class status from the new executive that is intolerable.”

Anti-Defamation League CEO Jonathan Greenblatt put it more starkly. “This is a sad day in America,” he told me. Greenblatt continued:

The president has just shut America’s door on people facing unspeakable pain and suffering. We’re still analyzing the order, but for so many people—the Iraqi translator persecuted for his services, or the LGBT youth in Yemen, or the widows and orphans in Syria caught in the horror of ISIS—this executive order can be a death sentence. Yes, we need scrutiny. But some of these are broken men and women from broken families who are fleeing abject terror. This is a nation founded by refugees fleeing just such persecution.

If you are waiting for the Trump administration to “come for the Muslims,” it’s not going to look like the Japanese internment or the Nuremberg Laws. There may not be a registry to sign up for in solidarity. No. It’s going to look like this: a creeping degradation of Islam as propounding a “toxic ideology” (in the parlance of the soon-to-be Attorney General Jeff Sessions), a creeping privileging of Christian refugees over Muslim ones, and a burgeoning belief that religious freedom as protected by the Constitution means that some faiths are more legitimate than others. More pointedly, as Warren suggests, you should be very afraid of a Trump administration that, effective Wednesday, has made good on its promise to separate members of one religion from another within the same nation. That didn’t just happen in Syria and Iraq. It just happened in America as well.

One more thing

The Trump administration poses a unique threat to the rule of law. That’s why Slate has stepped up our legal coverage—watchdogging Jeff Sessions’ Justice Department, the Supreme Court, the crackdown on voting rights, and more.

Our work is reaching more readers than ever—but online advertising revenues don’t fully cover our costs, and we don’t have print subscribers to help keep us afloat. So we need your help.

If you think Slate’s journalism matters, become a Slate Plus member. You’ll get exclusive members-only content and a suite of great benefits—and you’ll help secure Slate’s future.

Join Slate Plus