Didn’t We Do This Already? An Early Analysis of the Replacement “Travel Ban” Executive Order

(This is the umpteenth installment of a series of articles unpacking the many executive orders issued by the Trump administration. Click here to read the installment on this order’s predecessor, issued in late January. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

Hello from my lunch break! The administration put out a new version of January’s “travel ban” executive order yesterday, as well as a fact sheet that reads more like a form template responding to expected interrogatories than anything else. To save you some antacid, and because I’m preparing summaries on this topic anyway, I figured I’d let you know what has changed and what has stayed the same.

Same Garbage, Different Day…

Here are the provisions that look exactly the same, in all their still-terrible splendor:

  • Three Months without Travel. There is still a three-month travel ban for nonimmigrants from six Middle Eastern countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen). You’ll note this is one fewer than the old one, and more about that below.
  • Refugees Still Not Welcome. There is still a four-month cessation of refugee acceptance from all countries. It’s still unprecedented and longer than the one after 9/11, and they are still limiting refugee entry in fiscal year 2017 to 50,000 (which is less than half the amount set by the Obama Administration for the year).
  • Fuhrer Exception Still in Place. You can still get an exception to the ban for “the national interest,” which is just as vague as it was the first time.
  • Fingerprints and Photographs. The enhanced screening, including biometric screening on entry and exit, is still in place.

…But they added some Febreeze to mask the stench.

Here are the major changes made in the new version, which make it slightly more palatable but don’t change the biggest underpinnings:

  • Six is the New Magic Number. Iraq is no longer included in the list of countries banned from entry. They explain this in the executive order, in way more detail than you probably care to read, but it basically comes down to saying that Iraq is a “special case.”
  • There’s a Set Start Date. The new provisions go into effect March 16, which is presumably as much to avoid an embarrassing repeat of January’s confusion as anything else.
  • Syria No Longer Singled Out. There’s no indefinite prohibition of Syrian refugees, who presumably can reapply with everybody else after the four-month window passes. Unofficially, there may still be a prohibition in place for most refugees until FY 2018, though, because we had already cleared half the new 50,000 cap set for FY 2017 by December 2016.
  • Legal Status Apparently Means Something Again. Folks who have U.S. citizenship, lawful permanent residence, or a previously-issued legal visa now are supposed to be exempt from enforcement (though, of course, it remains to be seen if CBP will comply with the provision).
  • “Religious persecution” priority has been removed. There’s nothing to say this won’t still happen unofficially, but it’s no longer an explicit part of the executive order.

For more reading on this topic, I recommend this article put out by the New York Times, which contains a good compare-and-contrast summary. And on that note, it’s back to the law mines for me. I’m hoping to draft another essay about detainee free labor in the near future though, so watch this space.

Head-Fakes and Chore Charts

Hello from my lunch break! I’ve heard a lot of people talking about an article here on medium titled, “The Immigration Ban is a Head-Fake — and We’re Falling For It.” The central thesis of the article is that “the administration is deliberately testing the limits of governmental checks and balances to set up a self-serving, dangerous consolidation of power” and that the immigration ban was a “distraction” that we “fell for” by protesting. The article concludes by noting that protesting is a mixed bag which can “help the other side,” and urging reporters to do their jobs properly.

(There, I saved you a click.)

I actually agree the first premise of this article — like the author, I genuinely believe we were witnessing boundary testing of a nascent fascist regime.

That said, however, I do have qualms about the rest of the article. More specifically…

The immigration ban is not a distraction, and protesting is an absolutely necessary response to this boundary-testing, for several reasons:

  1. The immigration bans in place resulted in many, many people throughout the country being detained illegally on Friday. In addition to being real people with very real risk of deportation, which would be life-altering and in many cases potentially life-ending, those people are themselves a bell-weather for further fascist activity. It is absolutely vital that we pay attention to what is happening with our most vulnerable populations, because we know from history that fascist escalation begins there but does not end there.
  2. The protests in airports served as very important cover and coordination for the attorneys working in JFK, Logan, Dulles, and elsewhere. They helped attorneys get people access to representation during detention, file emergency motions that created court holdings (in case anyone were curious whether it’s normal for court holdings to issue on a Saturday, it is not), and test our boundaries against this regime — we can’t know whether they will ignore court orders until there are court orders in place, and once they have done so we have really important information about next steps.
  3. It’s extremely important for the average citizen to be doing things they feel are helping resist, both in terms of general morale and because resistance is a natural counter to normalization. Fascist regimes rely on normalization very heavily in order to work properly; it’s why propaganda is so prevalent and it’s also why you keep hearing politicians say the phrase “This is not normal.” Average citizens might not be able to file motions, but they can coordinate with people who can, and they did, and that is in no way “playing into this administration’s hands.”
  4. Protests reinforce the objectively true fact that fascism is not an end goal of a majority of Americans, which is a piece of propaganda we’re hearing over and over again. Though this article contemplates the idea that Trump has lots and lots of supporters, he actually doesn’t, especially on scary fringe issues like whether Bannon should have the authority to assassinate American citizens. Protests help the average American see that. It’s much, much easier to lie about this if active protest isn’t visible.
  5. Most people don’t know what they should be doing instead, and protests give people who want to do something something to do. This is actually really psychologically valuable, and as long as people don’t conclude they’ve done everything they need to do purely by showing up, it’s not a bad thing that they feel they have helped. So the moral is not “don’t protest,” it’s “don’t only protest” (which, to be fair, that article does state clearly). At minimum most people who showed up also tracked the news, which is very important and a thing we all need to be doing.

All of that being said, if we should be doing more than protesting, what else can we be doing?

I’ve been thinking about this question a lot of late, and more specifically about how we diversify and cooperate over the next four years — I think we all know that everyone doing everything every day just isn’t going to work that whole time, and as the article notes, protest is necessary but not sufficient to enact long-term change. There are so many things we all need to be doing — from gathering information, to disseminating information, to political action, to legal action, to logistical support, to morale boosting, to name a mere few — and we all have a role to play here.

Think of it as maintaining a house together — everybody gets a chore to do, and if all of us are sweeping daily, nothing else gets done. Some of us want to swap chores, and some of us want to do the same one every time. And the beauty of this work is that both of those are possible! I would love it if we were all thinking about how we can work together, playing to our strengths, to get through this.

After pondering this a bit, I concluded the best way to thinking about distributing various tasks necessary for change is to use a process of discernment I learned at school, which is loosely based on a Jesuit process of discernment of spirit (but is not religious).

Here is the basic question to ask yourself:


1. Brings me joy…
2. …And I am good at…
3. …that is needed right now?

Note that those three things, by the way, are in order of importance; something that you really don’t enjoy is not sustainable for four years even if it’s really important, and we all need to be playing to our strengths. Some things, like protesting, are all hands on deck, but all hands on deck is no way to live day-to-day, and it’s a great way to burn ourselves out.

So, to synthesize for those of you who have less time for a lunch break than I do:

1. These are scary times;

2. Protesting is valuable;

3. So are other things, and we should be talking about what else we’re all going to do to keep on keeping on.

Okay, that’s all for now! Time to head back to my own task for social justice, which would be my advocacy day job. I’ll catch you all at the next EO.