This article is based on a collection of archival stories.
When it comes to energy, perhaps the only thing President Trump loves more than coal is oil and gas. Just a day shy of 100 days into his presidency, Trump is expected on April 28 to sign an executive order to open more offshore oil drilling in U.S. waters.
The move is meant to spur the economy and reverse President Obama’s decision last December to ban drilling from large swaths of sensitive marine environments. Regardless of whether Trump succeeds in overturning Obama’s protections, it’s clear oil won’t be flowing from new offshore wells anytime soon. Why is that? And will Americans even support this promised offshore boom? Our academic experts offer some answers.
Obama used an obscure provision of a 1953 law to “indefinitely” protect 120 million acres of marine environments in the Arctic and Atlantic oceans. Environmental law professor Patrick Parenteau from the University of Vermont explains the legal justification for the ban and why Congress is a critical player in Trump’s plans to open up drilling.
The law “does not provide any authority for presidents to revoke actions by their predecessors. It delegates authority to presidents to withdraw land unconditionally. Once they take this step, only Congress can undo it,” Parenteau writes.
Lessons from Shell’s misadventures
Meanwhile, are oil and gas companies clamoring to get into the Arctic and other offshore sites? Two years ago, Royal Dutch Shell pulled out of the waters off Alaska, citing disappointing results from its exploratory well. It also ran into serious troubles, requiring help from the U.S. Coast Guard, after its offshore drilling rig broke loose and ran ashore. Despite all the technical challenges, though, oil majors have been eyeing the Arctic for decades – and facing opposition to their plans, writes historian Brian Black from Penn State.
“A dramatic emphasis on Arctic drilling reopens debate on the pros and cons of development, arguments that have remained largely unchanged since interest commenced in the 1960s. These include the challenges of technology and climate; impacts on wildlife and native peoples living in the region; and strong resistance from environmental organizations,” Black says.
When it comes to safety, Shell’s about-face in the Arctic was instructive, says Robert Bea, an expert on assessing and managing risk from the University of California, Berkeley. While guidelines for offshore drilling have been updated following the Deepwater Horizon blowout disaster in the Gulf of Mexico, the Department of Interior guidelines do not follow the best available safety processes, Bea says.
“Reliance is being placed on the Department of Interior best practices of experienced-based, ‘piece by piece’ prescriptive guidelines and regulations. These have not been proved or demonstrated to be adequate for the unique drilling systems, operations and environment involved in Shell’s operations in the Chukchi Sea this summer,” he wrote in reviewing Shell’s troubles.
Even with these safety concerns and relatively low oil prices, the industry is moving ahead in the Arctic, in part because of fracking, the drilling technique that revolutionized the energy industry onshore, from Pennsylvania to North Dakota.
“Although it has gone largely unnoticed outside the industry, foreign firms are partnering with American companies to pursue these new possibilities. I expect this new wave of Arctic development will help increase U.S. oil production and influence in world oil markets for at least the next several decades,” Scott Montgomery from the University of Washington wrote recently.
Meanwhile, how does the U.S. public feel about offshore drilling overall? Certainly, few consumers will complain about cheaper gasoline – one of the justifications for boosting oil production. But support for offshore drilling dipped substantially after the Deepwater Horizon spill in 2010, according to an analysis of public polling by David Konisky from Indiana University.
“The fluctuating nature of recent public opinion suggests sensitivity to external factors such as accidents, oil prices, and Middle East politics. But more broadly, one can reasonably interpret the U.S. public as divided on how to achieve the right balance between energy development and environmental protection,” he wrote.
On Tuesday, March 28, President Trump traveled to the Environmental Protection Agency to sign an executive order rolling back a number of climate-related regulations that have taken effect over the past eight years. The president’s team claims this effort will help bring our nation closer to energy independence, and that it will begin the process of resuscitating a coal industry that has experienced serious decline in the past decade.
In reality, it will do neither. We do not import coal into the United States. There are no jobs coming back from overseas. Moreover, and somewhat ironically, the chief reason for the decline in the coal industry is not Obama-era regulations, but a rapidly changing energy market.
Any energy market analyst will tell you that advances in hydraulic fracturing and horizontal drilling have provided us with cheap, abundant, natural gas. Add to that declining price curves in wind and solar generation, and one begins to appreciate that a difficult road lies ahead for coal. These are markets that are growing with rapid technological innovation.
The shift is underway
The fact is that the Obama administration’s Clean Power Plan codified where the utility industry was already going. With publicly announced retirements, roughly 45 percent of the existing coal capacity in the western grid will be retired by 2030. According to utility integrated resource plans, by 2026, just shy of half of the total energy in the West will be generated from zero-emitting resources.
The 11 western states that my center had been convening around implementation of the Clean Power Plan are, collectively, in compliance with the plan’s 2026 targets under business as usual. Ironically, removing the Clean Power Plan just eliminates a potential for market-based emission trading that would lower costs to consumers and provide some states with a glide path to meet their targets.
This is not to say that the regulatory rollbacks in President Trump’s order will have no impact. The international community, which crafted the landmark Paris Accord, will not have the benefit of U.S. leadership on climate change. Other nations will fill that void – while reaping the economic rewards of serving a growing global market with low-carbon technologies. One of the most troubling long-term impacts of these actions will be a declining global view of America as a source of innovation and investment.
At home, should the Clean Power Plan expire, states that have been reticent to advance a clean energy agenda will no longer be required to plan for emissions reductions. The Clean Power Plan brought certainty to energy planning. If you talk to American utility executives and their investors, they crave certainty because it lowers the cost of capital and saves money for consumers. The executive order is a step away from stability in our energy markets and away from America’s leadership as an innovator developing the technologies that will serve a growing global market.
States, cities and businesses are moving forward
Attempts to roll back important environmental safeguards are being sold to the American people under the rubric of job creation. Let’s put this in the proper context: There were 65,971 jobs in coal mining nationwide in 2015. According to the Department of Energy, more than twice as many jobs – 133,000 – were created last year just in the energy efficiency industry. In 2016 the solar workforce grew by 25 percent to 374,000 and the wind workforce grew by 32 percent to 102,000. One in 50 new jobs in America is now in solar energy.
From 2007 to 2011, as Governor of Colorado, I signed 57 pieces of legislation intended to transition Colorado to a clean energy economy. After leaving office I founded the Center for the New Energy Economy at Colorado State University with the intention of working with governors, state legislators and utility regulators on clean and advanced energy policy. In our work at the center, my team and I have become confident that states, cities and private companies are taking the lead in the clean energy transition, even as the federal government flounders. Today 37 states, comprising two-thirds of the U.S. population, have renewable portfolio standards that require electric utilities to generate or purchase a percentage of their power from renewable energy.
Governors from both parties have led this transition. Seventeen governors have joined the Governors’ Accord for a New Energy Future, including the Republican Governors of Nevada, Iowa, Michigan, Massachusetts, New Hampshire and Vermont. In doing so, they have all committed to diversify their states’ energy generation with clean energy sources, modernizing energy infrastructure and encouraging clean transportation. In addition, 129 U.S. cities have signed the Compact of Mayors’ pledge to address climate change.
Thirty-three U.S.-based companies, the likes of Coca-Cola, GM, Goldman Sachs, HP, Johnson & Johnson and Nike, have committed to a goal of using 100 percent renewable energy as part of the RE100 Initiative. Some 50 U.S. companies will need to purchase 17 gigawatts of renewable energy by 2025 – enough to power the entire state of Colorado – in order to fulfill their existing corporate targets.
True leadership requires a vision that looks to new markets, new technologies and new solutions. Unfortunately, the president’s actions on Tuesday look backward toward a fading horizon, rather than forward toward a bright and promising future.
As President Trump pivots from a failed attempt to overhaul health care to new orders rolling back controls on carbon pollution, environmentalists are preparing for an intense fight. We study environmental politics, and believe the health care debate holds an important lesson for green advocates: Policies that create concrete benefits for specific constituencies are hard to discontinue.
Opinion polls and hostile audiences at Republican legislators’ town hall meetings show that the Affordable Care Act won public support by extending health insurance to the uninsured. And this constituency is not shy about defending its gains.
Classic studies of the politics of regulation by scholars such as Theodore Lowi and James Q. Wilson show that when benefits from a regulation are diffused across many people or large areas and costs are concentrated on specific constituencies, we can expect political resistance to the regulation. Groups who stand to lose have strong incentives to oppose it, while those who benefit form a more amorphous constituency that is harder to mobilize.
We can see this dynamic in climate change debates. President Trump and EPA Administrator Scott Pruitt contend that undoing carbon pollution controls will promote job growth. Cecil Roberts, president of the United Mine Workers of America, argues that the Obama administration’s Clean Power Plan will destroy coal jobs and communities, and that “green jobs” in clean energy industries are unlikely to be located in coal country.
Climate change can be framed in many ways, and there has been much discussion about which approaches best engage the public. Environmental advocates can do a better job of emphasizing how climate regulations produce local benefits along with global benefits.
One promising initiative, the BlueGreen Alliance, is a coalition of major labor unions and environmental organizations. Before President Trump’s recent visit to Michigan, the alliance released data showing that nearly 70,000 workers in well over 200 factories and engineering facilities in Michigan alone were producing technologies that helped vehicle manufacturers meet current fuel efficiency standards. Regulations can be job creators, but this truth needs to be told effectively.
Pipelines: Local jobs or global environmental protection
President Trump’s approval of the Keystone XL and Dakota Access pipelines demonstrates the difficulty of fighting locally beneficial programs with global arguments.
Environmentalists argue, correctly, that both pipelines are part of the infrastructure that supports the fossil fuel economy. For example, by some estimates the KXL pipeline could increase global carbon dioxide emissions by as much as 110 million tons annually by making possible increased oil production from Canadian tar sands.
However, both the AFL-CIO and the Teamsters support the projects. They believe pipelines create jobs, although there is broad disagreement over how many jobs they generate over what time period.
Local protests have not changed the Trump administration’s political calculus on DAPL or KXL, which is why opponents in both cases are turning to the courts. But in other instances environmental groups have successfully mobilized communities by highlighting local issues.
In response to Utah officials’ efforts to roll back federal land protection, the outdoor retail industry has announced that it will move the prestigious trade show to another state after its contract with Salt Lake City expires in 2018. Patagonia is boycotting the 2017 summer show and asking supporters to contact Utah politicians and urge them to keep “public lands in public hands.” The bicycle industry is also planning to move its annual trade show to a location outside Utah.
Governor Gary Herbert has reacted by offering to negotiate with the industry. U.S. Rep. Jason Chaffetz introduced a bill in January that called for selling off more than three million acres of federal land in Utah, but withdrew it after massive protests from hunters, anglers and outdoor enthusiasts. Hunters and gun owners are important constituents for Chaffetz and other conservative Republican politicians.
Renewable energy means high-tech jobs
Environmentalists also successfully localized green regulations in Ohio, where Republican Governor John Kasich vetoed a bill in December 2016 that would have made the state’s renewable electricity targets voluntary instead of mandatory for two years.
In sum, environmental regulations have a better chance of surviving if there are mobilized constituencies willing to defend them. And in the longer term, a local and job-oriented focus could expand the blue-green alliance and move the working class closer to the environmental agenda.
At President Donald Trump’s request, a portrait of former President Andrew Jackson now hangs in the Oval Office. Commentators have cast Trump’s populist appeal and inaugural address as “Jacksonian,” while others have tried to emphasize their major differences. One writer lauded Jackson as “the president who, more than any other, secured the future of democracy in America.”
However, these comparisons overlook experiences of marginalized people while defining history in terms of the ideologies of progress and American exceptionalism.
Jackson’s intolerant attitudes and harsh treatment of African-American and Native American peoples have not gone without mention. They are indeed inescapable. As a scholar who has written about Native American history and literature, I am aware of just how often the perspectives of native people are neglected in conventional historical discourse.
The criticisms Trump has directed against Indian casinos in the 1990s, along with his insult of calling Senator Elizabeth Warren “Pocahontas,” casts his veneration of Jackson in a particularly disturbing light.
Andrew Jackson and the Trail of Tears
Jackson was a staunch supporter of slavery and policies that forcibly removed Indians from their lands. The passage of the 1830 Indian Removal Act was aimed at isolating native peoples to prevent conflict over territory and allow increased settlement.
The solution, originally conceived by Thomas Jefferson, was to empower the government to evict native peoples living east of the Mississippi River from their lands. Those subjected to removal would be moved “beyond the white settlements” to distant reservations in the West, known at the time as “Indian territory.” It was a form of segregation.
In 1832, the Supreme Court struck down Georgia laws aimed at depriving the Cherokee people of their rights and property in Worchester v. Georgia. The court affirmed a degree of native political sovereignty and annulled state jurisdiction over native lands. It was the final case of the so-called Marshall trilogy, named for Chief Justice John Marshall – the author of the majority decisions – and established major precedents of federal Indian law.
The immediate effect of the decision was to grant protections to the Cherokee Nation, and by extension to other tribes. It could have prevented forced removals, but Jackson was reportedly indignant at the result. According to the famed journalist Horace Greeley, Jackson was said to have responded, “John Marshall has made his decision, now let him enforce it.”
Whether Jackson spoke those words has been contested by historians ever since. But his strong support for removal policy and subsequent refusal to enforce the court’s decision made his position clear. The response was a stern rebuke of the legitimacy of the Supreme Court, the doctrine of the separation of powers, the rule of law and ultimately the Constitution.
The result was the Trail of Tears, in which Cherokee and other native peoples of the Southeast were forced at gunpoint to march 1,200 miles to “Indian territory.” Thousands of Cherokee died during the passage, while many who survived the trek lost their homes and most of their property. Ironically, much of the land on which the Cherokee and other removed tribes were settled was opened to homesteading and became the state of Oklahoma some 60 years later.
Yet, the violent manner by which removal was carried out had been ruled illegal and unconstitutional by the Supreme Court in the Worchester case.
New assault on native rights?
The new administration is showing similar malice toward the legal status and rights of native peoples secured in American law. For example, Trump recently lifted President Obama’s injunction halting the construction of the Dakota Access Pipeline. Last week’s eviction of pipeline opponents from Sacred Stone Camp, led by the Standing Rock Sioux Nation, under threats of arrest has led to renewed uncertainty about native rights.
Statements by Trump’s advisers and government officials calling for the privatization of native lands guaranteed by treaties to seize valuable natural resources have only heightened these concerns.
This rhetoric echos policies that oppressed native people in the past. These include allotment, extending from 1887 to the 1930s, which eliminated communal ownership and led to the taking of millions of acres of native land. This was followed by termination and relocation of the 1950s, aimed at eliminating the legal status of native people while sending individuals from reservations to urban areas, further depriving native peoples of their lands, liberty and culture.
Tribal leaders negotiated treaties in good faith to reserve what amounts to a fraction of their original lands, with all attendant rights. Privatizing tribal lands would be a violation of these treaties.
The casual rejection of these covenants heighten the insecurity among native people evoked by Trump. His esteem for Jackson and their shared attitudes toward their legal rights and status should give us pause. That journalists and historians continue to offer positive views of Jackson’s presidency in light of this legacy underscores how the suffering of native people continues to be ignored.
It’s easy to understand the appeal of a president as CEO. The U.S. president is indisputably the chief executive of a massive, complex, global structure known as the federal government. And if the performance of our national economy is vital to the well-being of us all, why not believe that Trump’s experience running a large company equips him to effectively manage a nation?
So why the seeming contradiction between his businessman credentials and chaotic governing style?
Well for one thing, Trump wasn’t a genuine CEO. That is, he didn’t run a major public corporation with shareholders and a board of directors that could hold him to account. Instead, he was the head of a family-owned, private web of enterprises. Regardless of the title he gave himself, the position arguably ill-equipped him for the demands of the presidency.
Several years ago, I explored the distinction between public and private companies in detail when the American Bar Association invited me to write about what young corporate lawyers needed to understand about how business works. Based on that research, I want to point to an important set of distinctions between public corporations and private businesses, and what it all means for President Trump.
Public corporations are companies that offer their stock to pretty much anyone via organized exchanges or by some over-the-counter mechanism. In order to protect investors, the government created the Securities and Exchange Commission (SEC), which imposes an obligation of transparency on public corporations that does not apply to private businesses like the Trump Organization.
The SEC, for example, requires the CEO of public corporations to make full and public disclosures of their financial position. Annual 10-K reports, quarterly 10-Q’s and occasional special 8-K’s require disclosure of operating expenses, significant partnerships, liabilities, strategies, risks and plans.
Finally, the CEO, along with the chief financial officer, is criminally liable for falsification or manipulation of the company’s reports. Remember the 2001 Enron scandal? CEO Jeffrey Skilling was convicted of conspiracy, fraud and insider trading and initially sentenced to 24 years in prison.
Then there is the matter of internal governance.
The CEO of a public company is subject to an array of constraints and a varying but always substantial degree of oversight. There are boards of directors, of course, that review all major strategic decisions, among other duties. And there are separate committees that assess CEO performance and determine compensation, composed entirely of independent or outside directors without any ongoing involvement in running the business.
Whole categories of CEO decisions, including mergers and acquisitions, changes in the corporation’s charter and executive compensation packages, are subject to the opinion of shareholders and directors.
In addition, the 2010 Dodd-Frank Act requires – for now – regular nonbinding shareholder votes on the compensation packages of top executives.
And then there’s this critical fact: well-governed firms tend to outperform poorly governed ones, often dramatically. And that’s because of factors like a strong board of directors, more transparency, a responsiveness to shareholders, thorough and independent audits and so forth.
None of the obligations listed above applied to Trump, who was owner, chairman and president of the Trump Organization, a family-owned limited liability company (LLC) that has owned and run hundreds of businesses involving real estate, hotels, golf courses, private jet rentals, beauty pageants and even bottled water.
LLCs are specifically designed to offer owners tax advantages, maximum flexibility and financial and legal protections without either the benefits (such as access to equity capital markets) or the many obligations of a public corporation.
For example, as I noted above, a corporate CEO is required by law to allow scrutiny of the financial consequences of his or her decisions by others. As such, CEOs know the value of having a strong executive team able to serve as a sounding board and participate in key strategic decisions.
Trump, by contrast, as the head of a family business was accountable to no one and reportedly ran his company that way. His executive team comprised his children and people who are loyal to him, and his decision-making authority was unconstrained by any internal governance mechanisms. Decisions concerning what businesses to start or exit, how much money to borrow and at what interest rates, how to market products and services, and how – or even whether – to pay suppliers or treat customers were made centrally and not subject to review.
Clearly, this poorly equips Trump to be president and accountable to lawmakers, the courts and ultimately the voters.
Another important aspect of the public corporation is the notion of transparency and the degree to which it enables accountability.
A lack of transparency and reluctance to engage in open disclosure characterized the formulation of Trump’s immigration ban that was quickly overturned in federal court. That same tendency toward secrecy was manifest throughout the campaign, such as when he refused to disclose much about his health (besides this cursory “note”) or release any of his tax returns.
While there’s no law that requires a candidate to divulge either health or tax status, that lack of transparency kept potentially vital information from U.S. voters. And Trump’s continuing lack of transparency as president has kept experts and advisers in the dark, leading to precisely the confusion, mixed messages and dysfunction that have characterized these early weeks. And, of course, this can quickly lead to a continuing erosion of public trust.
Trump, it should be noted, made one stab at a public company: Trump Hotels and Casino Resorts. That was an unmitigated disaster, leading to five separate declarations of bankruptcy before finally going under, all this while other casino companies thrived. Public investors ignored all the signs in favor of the showmanship and glitz of the Trump brand and, as a result, lost millions of dollars. Trump allotted himself a huge salary and bonuses, corporate perks and special merchandising deals.
What is especially telling about this experience is that, rather than speaking on behalf of fiduciary responsibilities for the best interests of the corporation, Trump noted, “I make great deals for myself.”
Multiplicity of voices
There is no need to be overly naive here.
Some CEOs also operate in a highly centralized manner, expecting obedience rather than participation from direct reports. All business executives expect a shared commitment from their employees to their corporate goals and value dependability, cooperation and loyalty from subordinates.
But the involvement of a multiplicity of voices with diverse perspectives and different backgrounds and fields of expertise improves the quality of resulting decisions. Impulsive decision-making by an individual or small, cloistered group of followers can and often will lead to disastrous results.
What lies ahead
Virtually every U.S. president, ranging from the great to the inconsequential and even the disastrous, have emerged from one of two groups: career politicians or generals. So why not a CEO president?
Without question, a background in politics does not guarantee an effective presidency. Abraham Lincoln, the consensus choice among historians for the best president ever, was a career politician, but so was his disastrous successor, Andrew Johnson.
Likewise, we can think of many traits of an effective corporate CEO that could serve a president well: transparency and accountability, responsiveness to internal governance and commitment to the interest of the overall corporation over and above self-enrichment.
Sadly, that is not Trump’s background. His experience overseeing an interconnected tangle of LLCs and his one disastrous term as CEO of a public corporation suggest a poor background to be chief executive of the United States. As such, “nobody knows who’s in charge” may be the mantra for years to come.
Is President Trump’s recent executive order on immigrants and refugees legal?
It’s a surprisingly tricky question.
The order arguably violates both a federal statute and one or more sections of the Constitution – depending on whether the immigrant is already in the U.S. In the end, opponents’ best hope for undoing the order might rest on the separation of church and state.
Trump’s order bars the entry of any refugee for 120 days, and Syrian refugees indefinitely. It also bans citizens of Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen from entering the U.S. for 90 days. This order potentially affects more than 20,000 refugees, along with thousands of students nationwide. Depending on how it is enforced, it could also impact as many as hundreds of thousands of green card holders, or immigrants with permanent residency.
A U.S. District Court judge in Brooklyn, New York, issued a ruling that halted the enforcement of Trump’s executive order the day after he signed it. Judges in at least four other states followed suit.
Trump’s supporters defend the order’s legality based on a federal immigration statute passed in 1952 that allows the president to suspend the U.S. entry of “any class of aliens.” But, as a former U.S. Justice Department lawyer and a law professor, I believe there are at least four possible arguments challenging the legality of the order.
There is, critically, another federal statute that outlaws discriminating against a person regarding issuing visas based on the person’s “nationality, place of birth, or place of residence,” which Trump’s order clearly does. This second statute was passed in 1965 and is more specific than the 1952 statute. What’s more, courts have enforced this anti-discrimination ban strictly. This is the strongest legal argument against President Trump’s order.
But Congress can amend or repeal the 1965 statute, as it can any law. A Republican-controlled Congress might do that, although concerns raised by some GOP lawmakers may make that unlikely.
Due process and equal protection
The recent court orders halting enforcement of the Trump order relied on a legal argument that it violated due process or equal protection under the Constitution. Due process means that people get procedural safeguards–like advance notice, a hearing before a neutral decision-maker and a chance to tell their side of the story–before the government takes away their liberty. Equal protection means the government must treat people equally, and can’t discriminate on the basis of race, alien status, nationality, and other irrelevant factors.
As the Supreme Court has said, even immigrants who are not citizens or green card holders have due process and equal protection rights, if – and only if – they are physically here in the U.S. That’s why the recent court orders on due process and equal protection help only individuals who were in the States at the time the court ruled.
Given the rushed, chaotic manner in which the recent order was drafted and enforced, with no set chance for affected individuals to plead their case, maybe there are some valid due process arguments against the ban. But presumably, those can be fixed by slowing down and letting people have their say. Once that’s done, the remaining issue is whether the executive order violates equal protection by intentionally discriminating against Muslims.
Trump denies the order is a “Muslim ban,” even though he called for exactly that during the campaign, and each of the seven countries subject to the ban is majority Muslim. In explaining why those seven countries were chosen, the order itself cites the Obama-era law stating that persons who in recent years have visited one of these seven terrorism-prone nations would not be eligible under a “visa waiver” program. Similarly, says Trump, the defining characteristic here is terrorist danger, not religion. That’s why only seven of more than 40 majority Muslim countries are affected. (Note that the Obama-era rule isn’t based on nationality, but rather on whether someone of any nationality visited the danger zone since 2011 – a criterion not outlawed by the 1965 statute.)
One problem with Trump’s argument is that the order also seems to prioritize admitting Christian refugees. It does this by saying that once the 120-day ban on all refugees expires, priority goes to those of “a minority religion in the individual’s country.”
Supporters can rightly argue this “minority religion” language is neutral. It never mentions Muslims or Christians. But, as that neutral language interacts with the country-specific ban targeting seven Muslim countries, the two can’t help but disproportionately help Christians. Indeed, just days before signing the order, Trump told the Christian Broadcasting Network he intended to prioritize Christian refugees.
Separation of church and state
That brings us to the final legal argument against the president’s order. By picking favorites among religions, it violates the separation of church and state under the Constitution’s Establishment Clause of the First Amendment. Though Establishment Clause law is often murky, one clear point is that the government can’t favor one religious denomination over another.
This may be the most important of the constitutional theories involved in this case because it may have the broadest scope.
The due process and equal protection arguments only help persons who are already in the United States. Theoretically, a court ruling on those arguments might invalidate the order only as it applies to such persons. But if the order violates the Establishment Clause by making a statement favoring Christianity, a court could strike it down entirely.
President Donald Trump banned the entry of people from seven majority Muslim countries last week. Leaders as far apart ideologically as former Vice President Dick Cheney and Sen. Bernie Sanders warned the ban could become a recruitment tool for terrorists.
In addition, the U.S. risks straining or losing important diplomatic ties and fragile relationships. German Chancellor Angela Merkel and even Theresa May have warned about the geopolitical effects of a ban on immigrants and refugees from predominantly Muslim countries. Iran has already promised to take “reciprocal measures” after Trump’s immigration order, although the exact measures remain to be specified.
Just last December, the al-Qaida affiliate in East Africa, Al-Shabab, used footage of Trump’s call for a ban on the entry of Muslims as part of a recruitment film.
From the 19th century to 1965, the United States discriminated against various groups. In the 1920s, the U.S. established national origins quotas that set the number of immigrants who were allowed to enter the U.S. from certain countries. These quotas were designed to restrict the entrance of southern and eastern Europeans because nativists like famed eugenecist Harry Laughlin and Senator Henry Cabot Lodge feared the newcomers were likely to be criminals, and even anarchist or Bolshevik terrorists. Anti-Catholic sentiment played a role as well.
Bipartisan coalitions ended this discrimination in large part because it hurt U.S. national security at key moments during World War II and the Cold War.
A presidential commission after World War II found that U.S. exclusion of Japanese immigrants had contributed directly to the growth of Japanese militarism and helped motivate Japan’s attack on the United States in 1941. When the quotas ending Japanese immigration passed in 1924, the press in Japan declared a “National Humiliation Day” to protest the law. Seventeen years later, as the Japanese navy steamed toward Pearl Harbor, Commander Kikuichi Fujita wrote in his diary that it was time to teach the United States a lesson for its behavior, including the exclusion of Japanese immigrants.
During World War II, China became a major ally of the United States. Japan tried to drive a wedge between the Chinese and the Americans by portraying Japan as the defender of Asians against U.S. racism. The fact that the United States had banned Chinese immigration since 1882 through the Chinese Exclusion Act helped make the case. Japanese media in occupied China pointed to the hypocrisy of the Americans, who presented the United States as a friend of the Chinese while banning their entry.
A broad U.S. coalition called for Congress to end Chinese exclusion. President Franklin Roosevelt argued that repeal would “silence the distorted Japanese propaganda” and be “important in the cause of winning the war and of establishing a secure peace.” Congress halted the ban on Chinese naturalization in 1943 and allowed a symbolic annual quota. China remained the key U.S. ally in Asia during the war.
During the Cold War, the quota system posed a new national security problem. The Soviet Union and United States were competing to win the hearts and minds of Asians in battlegrounds like Korea and Vietnam. Radio Moscow’s broadcasts to Asia pointed out that U.S. law continued to treat Asians as inferiors. How could Asians take the side of a country that shunned them?
During the Korean War, Sen. William Benton of Arkansas highlighted the folly of spending billions of dollars and suffering 100,000 U.S. casualties while continuing to restrict the entrance of Koreans. In 1952 he told the Senate:
“We can totally destroy that investment, and can ruthlessly and stupidly destroy faith and respect in our great principles, by enacting laws that, in effect, say to the peoples of the world: ‘We love you, but we love you from afar. We want you but, for God’s sake, stay where you are.’”
By 1956, the Republican and Democratic party platforms both endorsed ending the national origins quotas. Congress finally ended the system in 1965.
Americans saw the challenge of singling out nationalities again after the 2001 terrorist attacks. The National Security Entry-Exit Registration System (NSEERS) required male citizens of 25 countries who were in the United States on nonimmigrant visas to register with the government. With the exception of North Korea, all of the countries were predominantly Arab or Muslim. More than 1,000 immigrants were detained. None was convicted of terrorism.
Governments in the Middle East and South Asia that had been working with the United States to counter terror were outraged by the harassment of their citizens. It’s hard to work together when one part of the team feels denigrated by the other. The NSEERS program was suspended in 2011 by the Obama administration. Officials concluded that NSEERS had fueled the impression that the United States was hostile to Muslims without stopping criminal acts.
History shows that humiliating national or religious groups on the world stage by restricting their entry makes it harder to keep our allies. It can create new enemies. This ban may put the United States at risk.