It is not about the executive orders. When it comes to protecting the United States from the threats posed by radical Islam, it has never been about President Donald Trump’s executive orders: the first one that was torpedoed by the radical judiciary in January, and the new and improved version that was suspended this week — the Lawyer Left having conveniently managed to shop its challenge to Barack Obama’s fellow Hawaiian and Harvard Law School classmate Judge Derrick Watson.
The issue is vetting. Each executive order was conceived as a temporary step, a “hold in place” measure while the permanent solution, vetting, was carefully crafted and ultimately implemented.
The president’s first order was not invalidated because it was invalid. It was invalidated by an outrageous political maneuver disguised as a judicial decision by the Ninth Circuit federal appeals court. Yet government lawyers — especially the law-and-order, have-faith-in-the-system types — can’t help themselves. They see litigation as a high-minded chess game, winnable by reasoned strategy: Look at what the court said the infirmities were, address them, and then take another crack at persuading the tribunal.
But that’s not the game being played by the Ninth Circuit and the many progressive activists among the 300-odd lawyers President Obama placed on the federal bench (that’s life tenure, boys and girls). They are about winning the war, not the skirmish.
For the Left, the law is not a corpus of constitutional and statutory principles to be applied. It is a pliable weapon for achieving policy goals, enabling will-to-power to masquerade as a “legal process.”
No tweaking of an executive order will overcome that.
Tweaking the executive order is not going to bring the Ninth Circuit around. Or judge Watson. Or federal-district judge Theodore Chuang of Maryland, another Obama-appointee who joined Watson in blocking Trump’s directive. Understand this: There is no way to craft an order restricting immigration from Muslim countries that will satisfy them — no matter how rife with jihadism the countries are, no matter how manifest it is that their dysfunctional or anti-American regimes make visa background checks impossible.
The Trump administration seems oddly stunned by this. It is as if they believed they were in a real, bona fide legal dispute; as if a few modifications in response to the judges’ express legal objections were going to make the Left’s implacable policy objection go away.
It was never going to work that way.
The courts were never going to grapple with the four corners of the executive orders — the undeniable, unambiguous, sweeping legislative authority vested in the president to restrict alien entry into the U.S.; the fact that non-immigrant aliens outside the U.S. do not have constitutional rights; the fact that our system makes border security against foreign threats the responsibility of the accountable political branches, not the unaccountable judiciary.
This is politics of a most demagogic kind, not legal analysis. So what the courts offer instead is a dark theory of purportedly rabid anti-Muslim bias, cobbled together by parol evidence of campaign-trail rhetoric.
And the administration fell for it. The administration has been goaded into replying, “No, no, no — this has nothing to do with Islam.” It points to the 85 percent of Muslim aliens globally who are unaffected by the orders. It stresses that the countries with the world’s largest Muslim populations — Indonesia, Egypt, Pakistan . . . — are not touched by the orders. It notes that countries covered by the order were first cited in legislation signed by Obama, not because they were Muslim but because they had unstable or hostile regimes that defy reliable immigrant screening. It emphasizes that of the original seven Islamic countries, one has now been exempted from the temporary ban — i.e., that the trajectory is to affect fewer Muslims, not more.
The goal is to achieve a screening system that vets for Islamic radicalism. How do you ever get there if you disavow a purpose to subject alien Muslims to heightened scrutiny?
That’s great . . . if what you’re trying to achieve is a temporary step followed by . . . nothing.
The goal here, though, is to achieve a screening system that vets for Islamic radicalism. How do you ever get there if, to try to justify a temporary step that provides no material security improvements, you disavow a purpose to subject alien Muslims to heightened scrutiny?
If that is not what President Trump’s “extreme vetting” is about, then what’s the point? Why bother with any of this?
Here is the blunt, inescapable fact: The United States is in a defensive war against what is imprecisely called “radical Islam.” The war proceeds on two tracks: the kinetic militancy of jihadists, and the cultural challenge of anti-Western, anti-constitutional Islamic law and mores. The ideology that catalyzes both tracks is sharia supremacism — the implementation and spreading of sharia, classical Islam’s societal structure and legal code, is the rationale for all jihadist terror and of all the Islamist cultural aggression that slipstreams behind it.
The dividing line is sharia supremacism. On one side of it we find patriotic, pro-American Muslims who are spiritually devout but reject the imposition of sharia on civil and political life; on the other, the Islamists — the sharia supremacists. The challenge posed by the latter is not merely that some percentage of them are jihadists; it is that as a population — or as enclaves that take hold in the West — they are assimilation-resistant, and their ideological havens will breed the jihadists of the future while stifling the Constitution in the here and now.
That is what we have to vet for. That is what the majority of the American people want: Muslims who embrace our way of life invited in, Muslims who threaten our way of life kept out. You can’t get there without subjecting Muslim aliens to more-extensive inspection.
Of course it is unfortunate that innocent, pro-American Muslims have to be put through more paces than other aliens. But it is not quite as unfortunate as the incontestable fact that inadequately vetted Muslims commit mass-murder attacks. While some of the innocent, pro-American Muslims will resent the heightened scrutiny (though many will see the need for it), those who are eventually admitted to our country will be safer because of it — a matter of no small consequence since peaceful Muslims, more than any other group, are killed and persecuted by jihadists and other sharia supremacists. In any event, though, the security burden has to be imposed on someone, and as between Americans and aspiring Muslim immigrants, it is less the responsibility of Americans than of alien Muslims that Islam endorses war and conquest. We didn’t create this problem.
This is the vetting that the Left and the courts are determined to prevent. They would have you believe that the Constitution is a suicide pact: that alien Muslims somehow have a First Amendment establishment-clause right against enhanced inspection; that an immigration system that has always vetted against totalitarian political ideologies cannot vet against this one, sharia supremacism, because it shrouds itself in religion.
So forget the executive orders. This is the ground on which the Left has to be defeated. We will never get there by denying that Islam is the heart of the matter.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.