Tuesday, January 31, 2017

We Apologize for Nothing Here

By Finbarr Curtis

In response to critics of President Trump’s executive order on immigration, White House Chief of Staff and Count Dracula impersonator Reince Priebus stated: “We apologize for nothing here.” While he was referring to chaos at airports, his statement follows a broader pattern of refusing even a potential apology. This is unusual. Human beings make mistakes. Apologies are ritualized practices that repair social damage and reestablish relationships among people. To never apologize is to be something other than fully human.

Priebus is aware that Trumplandia is out of the ordinary. His usage of “here” is one of a number of rhetorical moves where spokespeople have imagined Trump's White House as a new space set apart from ordinary politics, a zone where things work differently. Priebus knows that people usually feel accountable to each other, and what makes this administration exceptional is its aspiration to act without reciprocal obligations to the popular will or other branches of government.

The administration's efforts to rule by extraordinary means recalls Walter Benjamin's “Theses on the Philosophy of History,” in which he wrote: “The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule.” Following Benjamin's outline, the immigration order begins by citing the events of September 11, 2001 as grounds for suspending existing immigration policies. That 2001 was almost 16 years ago indicates that this emergency will last as long as Steven Bannon’s imagined war to defend “Judeo-Christian civilization” persists.

Bannon frequently invokes the language of “crisis” to describe the “beginning stages of a bloody and brutal conflict” between the “church militant” and the forces of the “new barbarity.” The immigration order is an opening salvo in this Holy War. The logic of crisis informs the bases for exceptions to the policy. The Secretaries of State and Homeland Security have the discretion to admit refugees on a “case-by-case basis” and are instructed to give preference to members of “a religious minority in his country of nationality facing religious persecution.”

It is not clear what “religious minority” means. We all know this is designed to privilege Christian immigration from Muslim-majority countries. Rudolph Giuliani clarified that the text did not make this preference explicit because it would violate the first amendment’s establishment clause. But identifying a religious minority opens up a can of definitional worms. Paralleling Bannon’s assumption that he can identify broad entities called “civilizations” is his belief that religions are bounded things like Christianity and Islam, and that head counts can make majority/minority status clear. But would Shia Muslims from Saudi Arabia be allowed to apply for refugee status or are they part of a majority religion called Islam? Would Catholics in Northern Ireland constitute a religious minority or are they classified as Christians? Could Muslims from Myanmar apply for refugee status? Or what about Muslims in France?

Such questions only make sense, however, if you are concerned with law as a transparent and predictable institution. The executive order deliberately flouts not only the Constitution, but the Immigration and Nationality Act of 1965. It also appears that Bannon overruled the Department of Homeland Security’s recommendation to exclude existing green card and visa holders.

The executive order, therefore, deliberately sought to provoke legal and popular resistance. It came as no surprise when multiple federal courts granted stays that suspended the order. It was a surprise that the administration directed the Department of Homeland Security to ignore the court orders and continue to enforce the new policy. This is an unprecedented challenge to the basic principle of the separation of powers. For the executive branch to be in contempt of court marks the biggest constitutional crisis since the Civil War. By any measure, this poses a far greater threat to American democratic institutions than the danger posed by a terrorist act.

The fuzziness of the identity of religious minorities is no accident. The purpose of the order was not to clarify the law, but to create a zone of uncertainty and insecurity in which existing legal rights are unknown. The "case-by-case basis” that allows for arbitrary exceptions without regard to institutionalized policy guidance creates a crisis of identification. If the legal status of green card holders can be challenged on the basis of religion or national origin, then who is exactly is protected? The act is designed to make Americans who do not identify as native-born white Christians to wonder: “Am I next?”

Bannon is hoping that such orders will provoke a face-punching response, and that this will lead to a national security crisis. The executive order has less to do with safety, then, than with producing a state of emergency that suspends existing law so that a strong leader can violate existing social and legal norms in order to act decisively to protect the nation from threatening Others. From such a leader we can expect no apologies.

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