The separation of powers is a contentious balancing act between the declaratory powers of the executive and legislative branches, and the modifying power of the judiciary. This balance is being tested across the West in the wake of populist political movements on both sides of the Atlantic. As citizens lose faith in officials, both political and judicial, they are less likely to accept decisions that push against the zeitgeist. Considering the contemporary cultural milieu, any decision is capable of inspiring outrage. One must be cognisant of this if one wants to be taken seriously when railing against something. It is unfortunate that such a state of affairs exists, but it is unlikely to change in the near future, so such considerations must be borne in mind. Donald Trump’s second swing at the Muslim immigration policy should be opposed on its ethical, ideological, and practical bases, not its constitutional status. This is because, as many people have noticed, laws often do not conform to a society’s intuitions about morality. As such, progressives who are interested in reasoned discourse should formulate their resistance on the basis of our logical concerns, not have our arguments turn on legal principles.
I must preface my comments regarding the judgement that I do not support the wording, intent, or implementation of President Trump’s Muslim ban. I have no doubt that an issue such as Islamic terrorism deserves a response, but it must be a considered and nuanced. I must have has some prospect of contributing to the solution to the problem. I am prepared to accept that the general thrust of the executive orders, namely screening those people who are liable to be jihadist terrorists, is a worthwhile goal. But the implementation and effect are so far removed from the goal so as to be the only things worth considering.
The most important point to be aware of is that this judgement is a preliminary one. It granted a Temporary Restraining Order, the purpose of which is to preserve the status quo until a full hearing can occur and the issues can be argued at length. This ruling is not a definitive legal denouncement of the executive order. This accounts for the somewhat loose reasoning applied by the judge to questions of religious persecution and equal protection. According to Watson, the test for determining if the executive order infringes on the Establishment Clause (the part of the First Amendment that pronounces on issues of religious freedom) is as follows:
- Must have a primary secular purpose;
- May not have the principal effect of advancing or inhibiting religion; and
- May not foster excessive entanglement with religion.
Trump’s executive order violates all three limbs of this test, but we must be careful in glorifying this triumph. It isn’t unreasonable to want to restrict immigration based on objectionable beliefs. Forget religion, bad ideas that can be identified as the cause of such behaviour as suicide bombing and overtly oppressive laws concerning women and LGBT people should be opposed and responded to. The danger is that the Trump administration, so sullied with the stain of xenophobia that any statement it makes regarding Islam is instantly decried, could craft a perfectly reasonable executive order and have it struck down by a Court that is losing sight of the implications of ideas. We must be vigilant and recognise that some version of this idea is reasonable, it’s simply unfortunate that President Trump is psychologically incapable of expressing it coherently.
This decision is a victory for the separation of powers and the ability of the foundational institutions of the United States to hold each other in check. But progressives and liberals must be aware that the core tenet of this policy – protection of the United States – isn’t an intrinsically abhorrent goal. I will oppose any overtly jingoistic bigotry emanating from 1600 Pennsylvania Avenue, but I will always bear in mind that people with destructive beliefs don’t respond to tolerance the way my neighbour does.
Tom is a blogger and academic based in Australia. He is currently working to be admitted as a lawyer and wants to travel and write about his interest areas of politics, philosophy and science.