Against Hate: The Muslim Ban as Unconstitutional Totalitarianism (II)

This is the second installment of a series that started last week.

What is difficult for this new administration to accept is not the idea that Muslims are different, because Jews are different, agnostics are different, LGBTQ communities are different. What is difficult for this new administration to accept is not the difference, but the sameness and the equality that they share under the Constitution. This is what is provoking the hatred, the aggression, and the Executive Order of the new administration. There is no democracy without equality, without treating the most drastically different and most remotely othered as a peer enjoying the same rights under the law.

As a scholar of the humanities, I tell my students that I do not have a medical doctorate. I cannot fix them if they get sick, but I can help them fix a line of thought, appreciate a literary experience, adhere to logical argument, expose fake ideologies, see through the falsity of exclusivism and conquer the lethargies of stereotyping. In all humility, I am no legal historian. I lack the knowledge, the training and the tools to explain the constitution. But the last ten days have reinforced in me the belief that this country has an amazing capability of redeeming itself and conquering hate.

The new administration invokes 9/11 in Section III of the Executive Order as a rationale for the Muslim ban despite the glaring fact that there have been no terrorist attacks or arrests made of any of the nationals, refugees or other immigrants from the seven counties listed in the ban. Let’s take a second to digest an unequivocal fact: since 9/11 not one single person among the population of the seven countries listed in the ban, not one single person in 213 million people has committed or plotted to commit an act of terrorism against the United States of America.

Why, then, does the White House feel the need to protect the United States from individuals coming from these countries in the first week of the new president’s term in office? What urgent work of intelligence prompted the new administration to choose the path of an executive order effective immediately, sending unsettling shock waves across the entire nation and beyond? Was the Obama Administration so remiss and negligent that it ignored obvious signs of imminent danger unknown to the American people, or was this just an impulsive act by a president wanting to appeal to his base? Did Rudy Giuliani lie on air when he stated that the president asked him “how to legally create a Muslim ban,” or was he simply presenting an “alternative fact”?

Obviously Executive Orders exist for a reason and serve an important function. Have no doubt, the President has the authority to declare suspensions of certain individuals from entering the US. The relevant section of Act 212 (f) of the INA reads as follows:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This “whenever” is not a discretionary condition and to interpret it as such is irresponsible. A key word in this clause is “finds.” The burden of proof, i.e., of finding must be based on facts, not fiction. In other words, a president cannot think, feel, or opine that some aliens or a class of aliens are detrimental to the interests of the United States. This section is written precisely to protect the nation against personal biases. The President must first “find,” i.e., discover and have strong and indisputable evidence that a certain alien or a class of aliens would be detrimental to the interests of the United States before making a proclamation. Such is not the case of the Executive Order whose premises are based solely on fear. The order desires rather than verifies information supporting its action. Interestingly, the term “aliens” refers to a small group of people while “a class of aliens” refers to a category of people having a certain property or an attribute in common and differentiated from others by kind, type, or quality. It is the same word we use at schools to distinguish people’s social status or economic rank. Seven countries with a total population of 213 million is not a class of aliens unless the President is willing to admit that the common property these listed countries share is Islam.

The only rationale for a president to issue an executive order of this magnitude is if the country is indeed in an active state of war with said countries. Even during WWII, Franklin D. Roosevelt did not issue an executive order of such a sweeping magnitude. He did, however, observe order 9066 (1942), an infamous post-Pearl Harbor order that gave the military the ability to mark out areas in order to exclude “any and all persons." The horrifying and tragic results of that order were more than 100,000 Japanese-Americans and Japanese immigrants (women, men, and children) sent to internment camps. An unspeakable tragedy happening on American soil at the same time the Holocaust was taking place in Europe.


The Japanese-American Historical Plaza in Portland, Oregon, which presents poems of Japanese experiences is a constant reminder of the value of the U.S. Constitution and the Bill of Rights. The last of the thirteen stones made from basalt and granite in the Park has a bronze plaque with excerpts from the Civil Liberties Act of 1988. Engraved on the plaque is an apology for the unlawful imprisonment of people of Japanese ancestry during World War II. Here’s the apologetic Statement of Congress printed on that plaque. I cite it in full because every word of this apology is worth citing in full:

The Congress recognizes that, as described by the Commission on Wartime Relocation Internment of Civilians, a grave injustice was done to both citizens and permanent resident aliens of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II. As the Commission documents, these actions were carried out without adequate security reasons and without any acts of espionage or sabotage documented by the commission, and were motivated in part by racial prejudice, wartime hysteria, and a failure of political leadership. The excluded individuals of Japanese ancestry suffered enormous damages, both material and intangible, and there were incalculable losses in education and job training, all of which resulted in significant human suffering for which appropriate compensation has not been made. For these fundamental violations of the basic civil liberties and constitutional rights of these individuals of Japanese ancestry the Congress apologizes on behalf of the Nation.
Public Law 100-383, passed August 10, 1988 by the 100th Congress


Seeing the alarming parallels between the Muslim ban and Roosevelt’s infamous Order of 1942, the conscientious Japanese-American actor and activist George Takei immediately started a petition to “stand up for Muslims.” Takei, who grew up as a child in a United States internment camp for four and a half years during World War II has taken it upon himself “to raise awareness of this chapter in American history in order to make sure this never happens again.” “To characterize all Muslims as potential terrorists,” continues Takei, “is ridiculous, as ridiculous as it was to call us the enemy back then when we were Americans.” Roosevelt did this during World War II exactly two years after the United States refused to admit over 900 Jewish refugees sailing from Hamburg, Germany. The ship appeared off the coast of Florida and was denied permission to land in the United States. After returning to Europe in despair, nearly 30% of the passengers on board, a total of 254 Jews, sailed back to their death in the Holocaust.

When the US opened its doors to Jewish refugees after World War II, the State Department and the Immigration and Naturalization Department (now known as USCIS), gave Jewish refugees from Central Europe Anglicized cognomens under the Integration Law to protect them against external Nazi retaliation as well as perverse and codified internal prejudices. In other words, the United States entered two wars: an external war against Nazi Germany and fascism and an internal war against its own recalcitrant white supremacy and policies of racial discrimination. This is the history we seem to have forgotten. This is the history that is repeating itself now. We cannot allow neither our historical amnesia nor our own cynicism to deceive us into normalizing and repeating this dark chapter in our history.

All fascisms and totalitarianisms rest on two core principles: the exaggeration of a looming sense of danger and the invention of a perpetual enemy. It is absolutely crucial to emphasize that fascism relied on the utter trustfulness of its citizens to the ridiculous point of enticing them to accept everything they are told, thus wholeheartedly embracing even the most obvious of contradictions.

These two principles are what fascism poured into the ears of its citizens in order to garner their consent. Hannah Arendt has underscored this point quite forcefully in her 1951 Origins of Totalitarianism:

In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and nothing was true… The totalitarian mass leaders based their propaganda on the correct psychological assumption that, under such conditions, one could make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism; instead of deserting the leaders who had lied to them, they would protest that they had known all along that the statement was a lie and would admire the leaders for their superior tactical cleverness.

This is why we must hold on to and fiercely defend the moral compass that allows us to distinguish fact from falsehood. If we allow ourselves to believe uncritically “the most fanatic statements,” the loss will be incalculable. If we cast doubt on this a priori faculty, this radar of conscience and morals that allows us to separate facts from lies, especially in our political system which we inherited from the founding fathers and which we feel proud to teach to our children, then we will be dealing ourselves a blow that nothing can remedy.

One of the most cherished qualities of the US democratic system is not just the peaceful transfer of powers, but also the separation of powers and the system of checks and balances. As James Madison reminded us in 1788, “the accumulation of all powers, legislative, executive and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny.” This statement is of crucial importance in understanding the Judiciary’s intervention to put a Temporary Restraining Order (TRO) on the President’s Executive Order. The separation of powers protects democracy against the accumulation of power by a single person or body of government, which, if it happens, will constitute the greatest threat to civil liberty.

If we recall the exchange between Seattle Federal Judge James Robart and Michelle Bennett, the trial attorney for the Justice Department’s Civil Division, an interesting debate takes place. Bennett insists that the President’s Executive Order is issued on national-security grounds, that the court should not deny it, because on the balance of equities, the order falls well within the President’s national-security powers, who is acting pursuant to congressional authority. In other words, the President has access to knowledge and agency discretion that the judge is unaware of and therefore his Executive Order should not be blocked by the Judiciary.

It’s true that Judge Robart may not have access to agency discretion, but this has nothing to do with his ruling. A federal judge has every right to a judicial review and to checking not just the executive but also the legislative branch by declaring a law or an order unconstitutional or harmful to the interests of the American people if deemed so. If the President decides there is a need to protect the United States from individuals coming from these countries, a federal judge has the authority invested in the Judiciary to determine if the order is rationally-based and grounded in facts as opposed to fiction. Judge Robart’s response is civil but firm:

The role assigned to the court is not to create policy and it is not to judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and the citizens who ultimately by exercising their rights to vote exercise democratic control over those branches. The work of the judiciary is limited to ensuring that the actions taken by those two branches comport with our laws and most importantly our Constitution…. I find that the balance of equities favors the State and lastly I find that a Temporary Restraining Order is in the public interest. As such, I find the court should and will grant the Temporary Restraining Order. The court concludes that the circumstances that brought it here today are such that we must intervene to fulfill the judiciary's constitutional role in our tripartite government.

Judge Robart reminds us that the Judiciary has the ability to hold everyone accountable to the rule of law, including the President of the United States. But there is more to the judge's ruling than meets the eye. His ruling weighs facts over fiction and proof over fears and speculations. In other words, Judge Robart yielded neither to “alternative facts,” whatever those might have meant, nor to the Justice Department attorney’s implication that it is not his place to question the President’s Executive Order. The stakes are too high to stay idle. The shadow of the Holocaust and the internment of Japanese-Americans compel us to resist the blocking of refugees and the discriminations against Muslims, not because this is about Muslims, but because we cannot afford to tamper with the core constitutional values and principles that bind this nation together.

Hypocrisy is the worst of all political enemies. It is the claim to serve the nation while in reality one uses the public office to promote bias and further one’s personal agenda, displacing patriotism with supremacy, moral values with conspiracy theories, and national interest with partisanship and prejudice.

True patriotism is the antidote to hypocrisy. We must understand patriotism as the relentless defense of civil liberties and as an unyielding resistance to the normalization of discrimination, numbness, paralysis, cynicism, and detachment. This is the time when we must all heed the lessons of the Holocaust, revere the memories of Japanese-Americans, and venerate the integrity of the Judiciary.

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