Too Much Utah?

Two weeks after President Trump issued his “travel ban” (a/k/a, “Muslim ban”), I started a long term research project on executive orders. My goal: identify every executive order dealing with immigration or race that affects employment (the travel ban disrupted numerous employment relationships, ranging from an NBA player to university researchers from banned countries).

So far, I’ve identified 239 orders and proclamations. Some are aspirational—the best America can offer: Lincoln’s Emancipation Proclamation, declaring slaves in ten states to be free and also eligible to be wage earners. The worst is FDR’s Executive Order 9066, ordering the internment of Japanese Americans (it effectively ended thousands of jobs held by these people). 

The Supreme Court invariably upholds these orders, including those that discriminate on the basis of race or religion.

My challenge: These orders are sporadic; brief in their statement; and opaque in concealing their odious intent. Courts just see the surface, the words of the order—they never look for the intent.

We saw this in the 5-4 Hawaii v. Trump case. 

Five justices saw just the text and said the president acted under appropriate authority. 

Four justices saw the anti-Muslim bias, read the tweets and campaign statements, and said the order was unconstitutional.

Having spent a week in the Uinta (above) and Wasatch mountains, I subconsciously developed a new way to think about these orders. They are comparable to volcanic islands.

On the surface, these presidential orders are small in scale; cool to the touch; and often barren. But look underneath. They are created by super-heated political forces, some that are malignant.

Before any president—whether FDR, Trump, Hoover, Coolidge, to name a few— issues a xenophobic order, Congress has enacted a law that authorized the president to act unilaterally. But most of these laws emanated from demagogic, anti-immigrant, and overtly racist political campaigns.

They underpin the briefly stated executive orders that give no outward indication of the “upheaval” (political and geologic) that creates such as order or an oceanic island.

Feel free to provide feedback at mhl@illinois.edu. It’s a whacky approach, and I might still be deprived of oxygen. Too much Utah! … But my challenge is to convince readers (and ultimately, judges) that these orders are the surface manifestations of a much broader and deeper phenomenon.

I’ll end by saying that I am offering this as an analogy to help us focus on the creative energy that leads to these executive orders. When an order is motivated by hate toward a specific group (e.g., Muslims, Japanese), two constitutional principles are implicated:

1. A majority view cannot be tolerated if it leads to tyranny over a minority. See the Federalist Papers-- or go see Hamilton.

2. After the Civil War, our Constitution guarantees equal protection to “all persons”—not all citizens, not all Americans, but "all persons."

Somehow, courts must be persuaded to look below the surface of these executive orders.