Sunday, January 29, 2017

A Federal Court Stays President Trump’s Muslim-Ban: Flawed Reportage?

Judge Ann Donnelly of the U.S. Federal District Court in Brooklyn, New York, issued a nationwide injunction on January 28, 2017 concerning President Donald Trump’s executive order barring people from seven countries from entering the United States. On the same day, BBC (America) radio reported that Trump had been stopped in his tracks. I submit that this instance points to the importance of investigative journalism prior to reporting. Alternatively, the case may illustrate a partisan or otherwise ideological penchant among journalists officially tasked with investigating and reporting rather than interpreting the news.

According to The New York Times, the order was “limited in scope, applying only to people on their way to the United States or already here.”[1] People en route to the United States on January 28th would not be sent back because of the undue hardship involved. Rather than allowed into the U.S., those few hundred people would be detained. So the federal president’s travel ban was essentially untouched. So the notion that the federal judicial branch had stopped Trump is clearly untrue. The hyperbole to the contrary may “make good press,” whether by opposition groups or journalists. Yet political value in sketching a political reality in which the new president was already going too far and thus had to be stopped cannot be ignored. In politics, perception can indeed become reality. So the possibility of a political agenda cannot be ruled out.

With regard to journalists and media companies, sheer ignorance or ideological preference is no excuse for not reporting the obvious: only people on their way to the U.S. would not be turned back, and they would remain detained until or unless they have been cleared on a case-by-case basis, as the executive order permits. To characterize the judge’s ruling as an injunction staying the order is nothing short of misleading.

The order itself was being taken out of perspective societally, as it was intended to be only temporary, giving the U.S. Government enough time to strengthen its vetting process.  The president is on firm ground in that, as the statement itself reads, “No foreign national in a foreign land, without ties to the United States, has any unfettered right to demand entry into the United States or to demand immigration benefits in the United States.”[2] To take a rather blatant example, a person does not have the right to unilaterally cross an international border, not to mention to go on to insist on a right to benefits for those who have lawfully crossed the border.

The order is on much less firm ground to the extent that the intent and outcome discriminates against Muslims.  “The smoking gun they put in the executive order is the idea that they would grant exceptions for minority religions,” said Anthony Romero of the ACLU.[3] The one thing you can’t do under the establishment clause of the First Amendment of the U.S. Constitution is favor one religion over another, he added. The clause states that the U.S. Government cannot establish (or favor) a religion, or prohibit the free exercise of religion. 

Would declaring or acting in such a way that only Christians are admitted from the seven countries in the Middle East mentioned in the order be to establish a religion? I submit that this question is more difficult than meets the eye. Clearly, favoring one religion over another runs contrary to the American value of toleration (it is certainly distasteful to me--comparative religion being one of my academic fields!) but does favoring people of a given religion establish that religion as the official religion of the United States? My point is merely that an elastic reading of the establishment clause may be necessary to get to establishment from barring Muslims. 

To be sure, the executive order does not bar Muslims; rather, it may discriminate against them. Yet even this may be a function of security rather than religious preference (which in itself falls short of establishing a religion). From a security standpoint, making distinctions among religions does have "a kernel of truth," given the facts on the ground. It makes sense, therefore, that stricter scrutiny would be entailed where a predominately Muslim country has lax security. I suspect that the selection of the seven countries had to do with weaknesses in the U.S.’s vetting process having to do specifically with those countries. Perhaps their security infrastructures pale in comparison with that of the Saudis--Saudi Arabia being omitted from the list in spite of being a conservative Muslim country! 

So, again, to report or characterize the executive order as a “Muslim ban” implies the sordid presence of either ignorance or a political agenda. Either way, it should be noted that a viable republic wherein the People stand as the ultimate sovereign depends on accurate reporting of the affairs of government to the principals. For intermediaries to become lazy or insert their own agendas is to disrespect the very notion of a republic, and the People as well.

[1] Adam Liptak, “Rulings on Trump’s Immigration Order Are First Step on Long Legal Path,” The New York Times, January 29, 2017.
[2] Ibid.
[3] Ibid.