Where all men are created equal but some are not

-By Arjya Majumdar & Dr. Armin Rosencranz, Jindal Global Law School

The United States of America has been responsible for the most number of refugee resettlements since World War II. An executive order signed into effect by newly elected President Donald J. Trump on 27 January 2017 seeks to reverse that history.

The Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” lays a 120-day freeze on immigration for refugees from Iraq, Iran, Libya, Somalia, Sudan and Yemen and an indefinite ban on immigration for refugees from Syria. All these nations have a predominantly Muslim population and this immigration ban is being interpreted as Trump’s repugnance towards Muslim immigrants in general.

As a result, nearly 60,000 visitors and immigrants with valid visas present in the United States now find themselves in an uncertain situation. With the executive order highlighting the need to protect the United States from foreign threats, this regressive step is sure to have foreign policy ramifications for the United States and indeed, across the world.

Political commentators and media have lashed out at this development with outrage and dissent. Legal scholar Laurence Tribe called the ban “a barely disguised religious discrimination against Muslims.” Others see it as a violation of freedom of religion or the free exercise thereof, contrary to the First Amendment of the US Constitution; or a violation of the due process clause of the Fifth Amendment. Implicit in due process is the equal protection of the laws.

This executive order joins a wave of nationalist sentiment across the world. Whether it is Putin’s apathy towards globalization or neo-liberalism or the British referendum to leave the EU and look inward instead, or even India’s Prime Minister Modi urging his people to bring manufacturing back to Indian businesses, we are in the midst of an anti-globalisation wave.

However, none of these perspectives take away from the crisis that this ban on immigration creates, and the horrors in US foreign policy that may yet come. America was, as they say, built on the backs of immigrants. Until January 2017, the US was the beacon of liberty and freedom for people across the world. It was a nation that welcomed immigrants seeking a new and possibly better life, students who sought the very best that higher education had to offer and refugees seeking asylum from persecution. Each immigrant brought a little bit of his own beliefs, culture and morality that contributed to what America is today.

That position is now in severe threat. As the US is a world leader in foreign policy, we may expect to see other countries follow suit. However, the attitudes towards refugees of some nations such as Canada and Germany still encourage optimism.

Considerably more optimistic is the widespread dissenting reaction from within. With Hillary Clinton having won almost three million popular votes more than Trump, it is easy to see why the American public has rejected the notion that immigrants from particular countries are unwelcome. There have been widespread protests at airports, at government offices and on social media.

Former acting US Attorney General Sally Yates refused to defend the legality of this executive order in court, citing that she wasn’t convinced that the order was consistent with the ideals of justice. Technology companies heavily dependent on inflow of skilled workers have also expressed their dismay and outrage against this immigration ban.

A Federal Judge in Seattle has already passed a nationwide order temporarily restraining the enforcement of the immigration ban, saying that it was unconstitutional and was causing ‘immediate and irreparable injury’. Other lawsuits dealing with this issue are pending before various courts around the United States.

However, the Trump administration refuses to go back on the ban – doing so would make the President appear weak. Yates was relieved of her position on the grounds that she had betrayed the administration. The US Department of Justice intends to file an emergency stay on the order from Seattle. It will not be long before the US Supreme Court will be seized of the matter in what may be heading towards a constitutional crisis.

Such moves and countermoves by the president’s office, the judiciary, law enforcement officials, bureaucrats and the American public all indicate considerable civil unrest, even within the government. With factions of the executive and the judiciary openly defying or rejecting the immigration ban, it will be interesting to see the reaction of the president’s office in the future and the implied threat of autocratic steps and a dilution of liberal democracy.

Perhaps what is most frightening is that Trump has used his presidential executive powers to discriminate against Muslims, both legitimately living in the United States as well as Muslims around the world. This flies in the face of the very ideals that the United States was founded upon, that ‘all men are created equal’ and have inalienable rights to ‘life, liberty and the pursuit of happiness’. Of course, the US Declaration of Independence also justifies the overthrow of a government that fails to uphold these rights.Immigrants made America great. Perhaps it is indeed time to make Americans great again.

(The article was originally published in The Statesman)

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