Law, Politics, and Symbolism in the Muslim Ban

Updated:
Posted in: Government

What matters about the president’s Executive Order?

For those who have slept through the past week, here’s the state of play: On Friday, January 27, 2017, President Trump issued an Executive Order for the proclaimed purpose of “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among other things, the Order imposed a 90-day travel ban on citizens coming into the United States from seven predominately Muslim countries: Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. It also indefinitely prohibited Syrian refugees from entering the United States. And it included a safety valve that allowed immigration officials to admit, among others, “a religious minority” living in one of the seven countries who was “facing religious persecution.” Unsurprisingly, the Order quickly became known as “the Muslim Ban.”

Legal challenges immediately followed, and within days, federal judges across the country had blocked some parts of the Order in at least some parts of the country. Last Friday, however, in a case brought by the States of Washington and Minnesota, a federal judge in Seattle issued a nationwide injunction that temporarily blocked most of the Order, including the immigration bans. The Justice Department promptly filed an emergency request to stay the district court order pending appeal to the Ninth Circuit. The appellate court denied the request the next day (Sunday, February 5), but ordered the States to file their response to the emergency motion by Sunday at 11:59pm, PST, and for the federal government to file its reply by Monday, February 6, at 3:00pm PST.

The legal issues in this case are complex. On the one hand, the Order relies on another federal statute, which gives the president broad power to “suspend the entry of all aliens or class of aliens” if he believes their entry “would be detrimental to the interests of the United States.” As The Los Angeles Times pointed out, presidents have not hesitated to use this power, and no one used it more often than President Obama. On the other hand, no president has ever invoked it as broadly as President Trump. In addition, the preference in the Order for people who are “a religious minority” in one of the seven countries—a thinly veiled reference to Christians—may violate the Establishment Clause, which prohibits the federal government from giving preference to one religion over another.

I do not ordinarily linger on the particulars of legal disputes, and certainly not on the details of judicial filing deadlines, but do so here to make plain that the Executive Order attracted intense and widespread judicial attention and will almost certainly make its way to the Supreme Court very soon. From this, some may be tempted to think the issue raised by the Order is fundamentally legal in nature. They may believe, in other words, that the relevant question is whether President Trump broke the law, and believe a determination to that effect will somehow “settle” the question. But they would be mistaken. In this case, as in so many cases where contentious national issues make their way to the courts, the law merely provides a stage for political battles. At least in contentious national issues, law is simply politics by other means.

If we think about the real work that the Trump Executive Order does in American life, it becomes clear that its principal contribution is symbolic, not legal. To Trump’s many supporters, the Order represents an heroic determination to defend the United States, and especially its besieged values and institutions, from the widespread and existential threat of Muslim extremism (and no doubt many of his supporters view “Muslim extremism” as redundant), and to stand firm against a reckless and misguided liberal establishment. The Order is representative of a particular vision of American life, a vision that prioritizes white, Christian dominance in national and international affairs. To them, Trump is a hero, and the Order shows them why.

Because the Order plays this symbolic role, its obvious overbreadth is completely irrelevant. For instance, though the Order is styled as a protection from “foreign terrorists” and repeatedly invokes the attacks of September 11, the fact is that no foreign national from any of the seven countries targeted by Trump’s Order has been responsible for any terrorist deaths in the United States over the past four decades—at least, that is the conclusion of a careful analysis or the data by the CATO institute. None of the 9/11 attackers were from the targeted countries. The CATO institute calculated that the chance an American would be killed in a terrorist attack committed by a refugee to be 1 in 3.64 billion. But to Trump’s supporters, this is all unintelligible gibberish—the “wahn wahn” of off-screen adults in every Charlie Brown special.

On the other hand, to Trump’s many detractors, the Order represents a dire threat to the United States, and especially its values and institutions, from a reckless and bigoted buffoon who inflames ethnic and racial animosity because he opposes religious, racial, and demographic diversity. For them, the Order is representative of a particular vision of American life that denigrates minorities, women, people of color, and any representatives of the numerous groups Trump insulted and mocked throughout the campaign. To them, Trump is a demon, and the Order shows them why.

And because the Order plays this symbolic role, its possible legality is irrelevant. Indeed, the same day the district judge in Seattle granted his nationwide injunction, another judge in Boston issued a carefully reasoned opinion that upheld the order. But unlike the decision from Seattle, the decision from Boston has attracted far less attention. (I stress that I am making no predictions about which legal position will prevail, let alone which is “correct.” Indeed, the whole point of this column is that questions like that are largely beside the point). Instead, my contention is simply that most of the media, like most of the intellectuals in the United States (including me), loathed candidate Trump and give considerably more attention to a decision against the Order than a decision for it.

It is hard to view the law as symbolic and political. It is not how we have been taught. But the most important question about the Executive Order has nothing to do with whether it is “legal.” The Order is part of an extended political theater. The lines of the Order, like the lines in a play, acquire meaning principally through their conversion into symbols of a particular narrative. Like almost everything Trump does or will do throughout his term in office, the Order is a symbol that will be used to mobilize support for competing narratives about American life. What matters is which narrative prevails and not which side has the better view of the law.

  • Joe Paulson

    The symbolism matters and the order can be horrible and strictly legal. But, the “important question” is debatable since a President is allowed to be “deplorable.” Illegality is somewhat different. This is true even if big picture, the symbolism can be worse both here and internationally.

  • Greg

    I agree that for the Trump as hero narrative that the legality of the order is irrelevant. In this narrative, if the law gets in the way, it is the law that is wrong, and the hero that is right.

    However, in the Trump as demon narrative, the legality of the order is very much relevant. In this narrative, Trump’s order is not just bad policy, but illegal executive overreach, whether through incompetence or animosity. If the order is ruled to be legal then this somewhat weakens the image of Trump as ignoring the rule of law. Were the executive order to be upheld it would not eliminate this narrative, but it would weaken it.

  • J.E. Tarrant

    Maybe I’m wrong here, however, to me it seems that since an attorney took the time to write a column stating that weather an executive order is legal or not is irrelevant because they don’t like the President who signed it, neither do some other people, and therefore it is symbolic and should be ignored. This is very disheartening. The executive order is legal, and this article’s argument against it is an effective nullification of the rule of law. Just because someone doesn’t not like President Trump, does not mean that everything he does is bad. By the rationale given here we should all smoke because Hitler hated smoking. This make no sense. Additionally, what sort of precedent does this set. Can the Executive branch not, through the consent of Congress, limit who enters the country and who does not? One of the countries on the ban is Somalia. Do we really believe we have any way to “vet,” Somalians (last year it was discovered a Somali man wanted for war crimes was working at Dulles as a security guard)? What seems particularly disconcerting about the stay on the order is that it is an affirmative, effectively demanding that the Executive branch give visas to people weather they think it is a good idea or not.

    • Greg

      I think you misunderstand Professor Margulies’s primary point. He was saying that whether or not the order is legal or not is irrelevant to its use *as a symbol* to show Trump as either a hero or a demon. Its use as a symbol by both sides will continue on regardless of whether or not the order is determined to be legal. I happen not to completely agree with this point but it is a reasonable point to make.

      As far as the legality of the order goes, this article recognizes it as a complex legal issue, and puts forth some legal arguments for both sides. Prof. Margulies knows all too well that whether or not the order is legal makes a huge difference to those affected by the order. Nothing in his article implied disrespect for the rule of law or a refusal to follow the determinations of the courts.

    • These countries that were mentioned had a congressional approval with Oboma’s signature attached to it stating that these countries were of greatest concern in terms of ISIS. So the incoming president for concern of the people of the United States started there. I have no doubt that this and was shown that this executive order was only until better vetting was established. I would suggest that there was nothing said about if the countries listed would or would not be extended to other countries. This would make one to have to conclude that further analysis was to be done and relaxation of order as vetting was confirmed to be better. This has been done by several presidents but never under such an immediate emergency nor with full disclosure as open as Pres. Trump has. He left no question as to what was in the order, very open with what he does. Perhaps today’s people are to conditioned to not knowing the whole truth and it scares them but they need to get with it.

  • Ruth Ann Cook

    I think this is really an off-the-rails supposition defying what Trump clearly states that he is doing. Trump’s testimony is more direct evidence of his intent than a writer’s claim. If the President is crazy and blatantly unfair, we need a lot more evidence than what has come out so far; and we need the courts.

  • abdul abdi

    Let us face it, candidate Trump said he will ban Muslims from entering the United States and President Trump carried out that promise with his order. The point is not about whether he has the legal right to do this or not. The point is the fact that he is very tribal and wants to Make America Great Again by ensuring only whites and Christians are welcome here. His advisors, Bannon and company, wanted to start with Muslims from seven states. I wonder what Msulim countries would be next on the list and what is the next religion he will go after. Stay tuned.