James Robart, 70, is curling a satisfied grin these days. Thirteen years ago, during his confirmation hearing before taking over as federal judge in a district court in Seattle, Robart had exclaimed: “Working with people who have an immediate need and an immediate problem that you are able to help with is the most satisfying aspect of the practice of law”. On February 3, he was able to help thousands of people with an immediate need and an immediate problem.
Immigrants and refugees from seven predominantly Muslim nations had been left stranded after newly-minted President Donald Trump issued an executive order banning them from setting foot on US soil--a measure he deemed necessary for national security. As airports started filling with travellers who learnt of their predicament mid-air and many more found themselves unable to even board flights to the US, Robart issued a temporary stay on the order and prohibited their deportation. “How many arrests have there been of foreign nationals from those seven countries since 9/11?” he asked US department of justice lawyer Michelle Bennett, who was representing the Trump administration during the hearing. When Bennett feigned ignorance, Robart himself replied: “None.”
The sigh of relief was global in proportion. Not only did US security forces have to stop detentions and deportations and let immigrants in, but green card and visa holders from the seven countries—Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen—also started rushing back, unsure of how long the window of opportunity would last.
Justice Robart isn’t alone. Ex-diplomats and officials argue that the ban actually threatens security by undermining the fight against terror.
Before becoming a US federal judge, Robart spent nearly three decades in private practice—helping children’s homes manage their legal affairs and representing refugees in courts. Just last year, he had chided the police for excessive use of force against minorities and exclaimed in court that “Black lives matter”—the slogan of a popular grassroots movement against police brutality. It is, therefore, not surprising that he has blocked the president’s anti-immigration executive order.
But Robart isn’t alone. Within weeks of taking over, Trump and his presidency are facing a concerted challenge as state administrations, federal and local courts, former officials, captains of industry and the angry half of a bitterly divided nation close ranks against him. Perhaps just as significantly, world leaders have stepped up and spoken out against his apparent undermining of international norms.
Despite his populist appeal, Trump hasn’t enjoyed the proverbial ‘honeymoon’ period that greets new presidents. Public protests began as soon as he was elected in November, with streets across the US erupting with chants of ‘Not My President’. Americans rallied against the victory of a candidate widely seen as racist, xenophobic and misogynistic, who, it had emerged on his campaign trail, had bragged about assaulting women in the past and whose election promises prominently included a ban on Muslim entry into the US and a wall to fence out Mexico. His inauguration on January 20 witnessed a Women’s March to Washington DC, joined by hundreds of thousands. A week later, when Trump issued the order barring the citizens of seven nations from entering the US for 90 days and putting Syrian refugee admissions on hold indefinitely, people again joined in protest—many of them at airports.
Robart’s stay on the order has been supported by federal judges in New York and Boston. In addition, a number of lower courts have blocked different parts of the order. But the legal drama is just starting to unfold. The issue is now being heard in an appeals court in San Francisco. Seventeen states and the District of Columbia have filed briefs in the court, arguing that the immigration ban “unleashed chaos” and—if allowed to go into effect—would harm state institutions, public universities and the economy. They contend that the executive order is unconstitutional, the pretext of national security is a “sham” and the ban is intended to discriminate against Muslims, as evident from many of Trump’s own statements on the subject.
President Trump has hit back in a manner he knows best. In a tweet, he berated Robart’s ruling as “ridiculous” and called him a “so-called judge”. The justice department has also filed its brief in the appeals court, claiming that the president has broad powers to issue such orders in the interests of national security and that courts should not second-guess his intentions. After all, this isn’t the first time a US president is issuing such orders. The Trump team cites eight previous instances, dating back to Ronald Reagan’s order in 1986 to restrict the entry of residents from Cuba, Libya, Russia, Somalia and Yemen. Most recently, President Barack Obama prohibited the processing of refugee requests from Iraq for six months in 2011—and did not disclose the policy for nearly two years.
Irrespective of how the appeals court rules, the matter will almost certainly end up in the supreme court.
A recalcitrant judiciary is hardly the president’s only worry. Several former diplomatic, intelligence and security officials, including secretaries of state John Kerry and Madeline Albright, have also filed a declaration against the ban. They argue that the ban in fact threatens national security by undermining counter-terrorism and law enforcement efforts and putting the lives of US troops and intelligence sources at risk. And senior members of Trump’s own Republican Party, such as senators John McCain and Lindsay Graham, said the ban would help the Islamic State and other militant groups recruit more easily by fomenting hatred.
Nearly 100 technology enterprises—including blue-chip companies such as Google, Facebook, Microsoft and Apple—have urged the courts to overturn the ban to protect the “competitiveness of US companies”. Other businesses have also publicly come out against the ban. Starbucks, for instance, declared it would hire 10,000 refugees worldwide. Many others have expressed support for their foreign employees.
Trump’s election and inauguration also sent temperatures rising outside American shores. A petition to block his upcoming state visit to Britain has gathered over a million signatures. On February 6, speaker of the House of Commons, John Bercow, cited parliament’s anti-racism/sexism stance and said Trump shouldn’t be allowed to address MPs on his visit.
Since he issued the Muslim ban, a number of world leaders—including some of America’s closest allies—have become publicly critical. Hours after meeting Trump in the White House, British Prime Minister Theresa May said that “we do not agree with this kind of approach”. Justin Trudeau, the prime minister of next-door Canada, tweeted that refugees were welcome in his country. Meanwhile, German Chancellor Angela Merkel reminded Trump about America’s responsibility towards refugees under the Geneva Conventions.
If these early days are any indication, President Trump faces some extremely challenging years ahead in office. He did not issue the immigration ban out of a genuine fear for national security—as is apparent from the countries on the list—but to begin implementing the racist and xenophobic agenda he promised at the hustings. That is also the reason why everyone, from judges and lawyers to current and former officials, business leaders and even international allies, have ranged against him so quickly. They realise this is just the beginning—that if left unchallenged, Trump would move to implement a plethora of other campaign vows, including blanket bans on Muslim immigration, a registry for Muslims in the country, the wall on the Mexican border and so on. He would also renegotiate regional and global free trade agreements the US is party to and security commitments to Nato allies, as promised.
With his January 27 order, the president was testing the waters for his way-out-in-the-left-field agenda. He has found out that the waters are a little too deep, and perhaps a little too hot, for comfort.
By Saif Shahin in Ohio