A gravely wrong decision

Thoughts on the travel ban and Trump v. Hawaii

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The Supreme Court on Tuesday upheld in Trump v. Hawaii President Trump’s travel ban – many, drawing on the president’s own words, contend it is a Muslim ban. To the president’s supporters, this is an affirmation of sound national security and immigration policy. To his detractors, and to many who simply favor humanity, our heritage as an immigrant nation, and human decency in general, the SCOTUS decision represents another aberration in the Court’s checkered history on civil liberties.

Banning travel from Iran, Libya, Somalia, Syria and Yemen – all predominantly Muslim nations – along with North Korea and Venezuela, would be an ineffective Muslim ban, as the government argued before the court, if the intent were to in one fell swoop enact the president’s campaign threat of a total Muslim ban. But, ignoring the president’s own stated promise of achieving such a ban and his repeated hostile and bigoted comments toward Muslims in general – as the majority justices did Tuesday – would be tantamount to willful ignorance.

The Court’s complicity in the president’s racist and xenophobic policies should not be a surprise. This is the price of the last election, and the loss of President Obama’s due nomination of Merrick Garland. The court’s decision will enable not only continuation of the current ban, but embolden the president on continued cuts to the asylum caps, extending the travel ban and limiting immigration in general – again, an intent he has explicitly voiced.

Americans and legal visa holders with families in the affected nations will face unnecessary separation from their loved ones. Roughly 1 million American citizens of Iranian descent now have little hope of bringing family members here, either for simple visits or more extended visa applications. Students, athletes, professors and researchers from those nations will be cut off from work and study here – long an effective tool for exporting American ideals back to and building détente with such nations. Citizens of those nations in need of emergent medical care no longer are able to seek that care in the United States.

All of those consequences are significant, and should not be overlooked. But, to find the true motivation behind and tragic consequence of this policy, I’d argue we need look no further than Syria. The president’s recent and repeated racist (and patently false) claims about immigrants in Europe allude primarily to refugees and asylum seekers fleeing the war in Syria. When the president tweeted “Big mistake made all over Europe in allowing millions of people in who have so strongly and violently changed their culture!” he was referring primarily to the Syrian refugee crisis in Europe – a crisis in which the United States has been at least partially complicit in causing, and almost entirely negligent in relieving.

Since the war in Syria has fallen out of American news coverage of late, pushed out by our president’s almost daily offenses against decency, decorum and the rule of law, let’s review a bit (pulled from my first post on the proposed travel ban last January).

In the first three years of the war – 2011 to 2013 – we admitted a cumulative total of fewer than 100 refugees from Syria. In 2014 we admitted 105, then 1,293 in 2015 at the height of the refugee crisis. Thus, in the first five years of the Syrian civil war (conflict is a bullshit term) – a war prolonged by our foreign policy, mind you – the previous administration admitted a total of less than 1,500 Syrian refugees. Meanwhile more than 1.3 million refugees were filing for asylum in Europe. Do some quick math, and you see we took in roughly one-tenth of one percent of the documented tired, poor, huddled masses clamoring across borders in Europe.

President Obama increased our admission of Syrian refugees to more than 10,000 in 2016: a significant increase over the previous years, but still an insignificant remedy to an international emergency we were complicit in perpetuating. For those who feel 10,000 refugees is a large number to take in one year, I offer the following (reported in the New York Times and elsewhere) for perspective: in 1979 we accepted 111,000 Vietnamese refugees, then 207,000 more the following year; during the Mariel boatlift from Cuba we accepted more than 120,000 refugees, including more than 80,000 in one month alone. So, arguments that infrastructure, social services, etc. simply cannot handle more than we’ve been accepting clearly are not instructed by our history.

Of course, we don’t accept refugees only from Syria (that is, when we do accept them). So, let’s look at the total refugee admissions cap: the total number of refugees from all nations we permit to enter the country in a fiscal year.

The cap stayed fairly constant at 70,000 to 80,000 in the decade FY06-FY16, spanning presidents Bush and Obama. The cap was reduced from 80,000 in 2011 to 70,000 in 2013 to 2015. That means as the Syrian conflict was worsening, and demand for places to resettle Syrian refugees was becoming critical, the Obama administration actually reduced the cap on total refugee admissions. It was bumped back up to 85,000 for FY16, then increased again to 110,000 for FY17 – though, since Obama would be president for only one quarter of FY17, it is questionable how much that increase was policy intent and how much political posturing in a campaign season.

For 2018, Trump lowered the cap to 45,000: the lowest number in more than three decades, and speculation is he will gut the number further with the knife handed him by the Supreme Court.

Again, compare our numbers to our European allies. Germany alone has taken about 500,000 of the estimated 1 million Syrian refugees now in Europe. And, according to Pew Research Center, nearly all of the Syrian asylum-seekers who arrived in Europe in 2015 and 16 either were approved or allowed to stay while awaiting adjudication.

Canada has taken in about 52,000 Syrians, and in the wake of the Tuesday SCOTUS decision has promised to accept more Syrians and asylum-seekers from all the nations we now systematically exclude. Meanwhile, in the first three months of 2018, we took in exactly 11 Syrian refugees. In a humanitarian crisis measured in millions of lives, you could have transported our nation’s response in the first quarter in a church van, and had seats to spare.

And what exactly are the Syrians escaping? Secretary of Defense Jim Mattis, the war-worn former Marine general who embraces the moniker “Mad Dog,” had this to say to Congress in April about those who have escaped: “I’ve seen refugees from Asia to Europe, Kosovo to Africa – I’ve never seen refugees as traumatized as coming out of Syria. It’s got to end.”

Our willful negligence in responding to that crisis means something only if you care about whether or not we, as a nation, remain a refuge for those seeking a better life. It’s evident the previous administration offered only a token response to the refugee crisis. But, we’ve now choked that response down to nothing, when humanity and our station in the world demanded we do more, and have done it all under the guise of security – a cheap cover for the bigotry and nationalism so readily espoused by our president, used as a political weapon to stoke the fears of his base.

To be fair, there certainly are security concerns involving the countries listed on the travel ban. But, a blanket exclusion from those countries is unnecessary and inhumane. Even at the height of the Cold War, President Eisenhower decided against blocking Soviet travel to the U.S., which could entail serious security risks, because a total exclusion would have been inconsistent with the liberal ideals we espouse to the world. President Carter did enact a travel ban on Iran during the Hostage Crisis, but that restriction was narrowly tailored to one country, for the span of one specific crisis, with a very specific mitigating act that would end the exclusion (the release of the hostages).

In the case of refugees seeking asylum, we’re talking about people who have been carefully collected in UN refugee sites for vetting prior to entry. That vetting lasts roughly 18-24 months before a refugee is considered for placement in the U. S. Thus, a terrorist would likely not choose this course as the expeditious or easy path to entry.

And what of the violent crime? Oh, the violent crime. Whether demonizing Hispanic immigrants or Muslim immigrants, the president loves to rile up the fear-mongers with the notion that all these immigrants are going to drive up crime and steal your culture. As to the first part, well that’s just a lie. Germany – the country that took in 500,000 Syrian refugees – is enjoying its lowest crime rate since 1992. The “increased crime rates” by immigrants equate to a greater number of petty crimes being committed commensurate with population growth.

Elizabeth Schumacher put it well in a June 25 column in the Boston Globe:

“Crime in Germany is at its lowest rate since 1992, and if refugee crime is (slightly) up, well, that’s because there are a lot more refugees. Even then, as Germany’s crime statistics bureau was at pains to make clear a few months ago, this mostly amounts to minor infractions like not paying for a tram ticket.”

In the United States, we’ve seen a similar correlation between immigration and crime. That is, there is a direct relationship between the two, but it’s most usually an inverse relationship – as immigration has increased, crime has gone down.

The Marshall Project expanded an earlier project last year to study crime rates and immigration over several decades, up to 2016, and found that crime decreased more often than it increased as cities saw growth in their immigrant populations. In 136 cities, about 70 percent of those studied, crime rates stayed stable or decreased while immigrant populations increased between 1980 and 2016.

So, again, the notion that we need to restrict immigration and travel to control crime is not supported by facts readily available to the president and his henchmen. That leaves us with only one possible conclusion: they are willfully lying to the world to vilify people of color and people of other faiths in order to get the blood up among the only people who actually believe these lies – the president’s base.

As for the “cultural concerns,” I won’t waste much time on that. If you believe immigration diminishes American culture, you haven’t the first idea of what it means to be an American or where the hell all of us (except Native Americans) came from in the first place. These “cultural concerns” are weak cover for racism and xenophobia reminiscent of the opening decades of the 20th century.

In the end, then, the president’s executive order is likely only to bar entry to those least likely to wish us harm and most likely to seek a meaningful life in our nation of immigrants. In short, we’re slamming the door in the face of moderate Muslims who desire to become American. We are cutting ourselves off from the very demographic we should be courting if we want to marginalize and eliminate extremism.

So, if national security isn’t of real concern, given the stringent nature of our vetting processes; and if immigration doesn’t drive up crime; and if cultural concerns are just a shell for ignorant, racist, xenophobic ass-hattery: Why have we gone to such great lengths to enact and uphold a travel ban?

Supreme Court Justice Sonia Sotomayor summed it up well in her dissent to Tuesday’s decision, drawing a comparison between the president’s ill-advised and unnecessary travel ban and the internment of Japanese-Americans during World War II:

“As here, the government invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion,” she said. “As here, the exclusion was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate and desire to harm the United States.”

Sotomayor called to task her SCOTUS colleagues for not seeing through the president’s sham reasoning for the travel ban, and for turning a blind eye to his overt bigotry in the crafting of it.

“By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security,” she said, “the court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

Sotomayor is referencing Korematsu v. United States, the case in which SCOTUS upheld the constitutionality of Japanese internment. She brought this up not only because of the parallel between these two injustices, but as proof that the Supreme Court of the United States has too frequently in its past twisted the words of our founding documents to sanction grave injustice and inhumanity.

In essence, to all those who point to the Supreme Court decision as justification for the travel ban, Sotomayor reminds us this same court has used sound legal reasoning to uphold: slavery (Dred Scott v. Sanford, 1857), eugenics (Buck v. Bell, 1927), Japanese internment (Korematsu v. US, 1944), segregation (Plessy v. Ferguson, 1896), racial discrimination in business practices (The Civil Rights Cases, 1883), the criminalization of gay and lesbian couples (Bowers v. Hardwick, 1986), and the lovely practice of shoving children into forced factory labor (Hammer v. Dagenhart, 1918).

Sure, the Supreme Court is essential to our form of government and is an essential check on the Legislative and Executive branches – sometimes the only check. But, sometimes SCOTUS is leading the way in getting it wrong. As Casey Sullivan, Esq. pointed out in his 2015 blog post “13 Worst Supreme Court Decisions of All Time,” from which I sourced the above examples: “For every Brown v. Board of Ed., there’s a Buck v. Bell.” Trump v. Hawaii falls squarely in line with the latter.

But, this is not the end of the matter. Just as the Judiciary checks the Legislative and Executive, so too can – and must – the Legislative check the Judiciary and the Executive. This will become more crucial as the president prepares to nominate another justice with the retirement of Justice Anthony Kennedy.

If you’re a devoted follower of the president, all of this is likely good news. But, if you believe America should relieve, rather than exacerbate human suffering in our foreign and immigration policy; if you believe racism and xenophobia should be left in our regrettable past; if you believe lies and bigotry are not befitting the highest executive office in our Republic; if you believe these things, then there is work ahead. November is coming. Only the Legislature can fix this now. And you will decide who does the fixing.

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