E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
For
my war powers book I reviewed the foreign policy, with special reference to decisions
related to war (including covert operations) of all US presidents since
FDR. With the possible exception of
Kennedy’s acquiescence to Eisenhower’s Bay of Pigs invasion and Alexander Haig’s
privately expressed (in the early Reagan administration) proposal to turn Cuba
into a parking lot, this is the worst start in foreign policy I can think of
for any modern presidential administration.
There’s no real comparison. Things
are sliding downhill remarkably fast.
But let’s keep in mind that it’s not really because of the actions of
the “US government.” It’s just President
Trump’s White House.
Although
Trump provoked a needless dispute with Mexico (needless because, after all,
parts of a wall already exist and we could have presumably expanded it somewhat
without jeopardizing our entire relationship), the seven-nation ban on refugees
is in another category altogether. There
could be severe consequences for the US, both externally and internally, from this
action, which will be fairly termed a ban on Muslims. I suppose we could discuss policy consequences
like an increase in terrorism, but the more obvious and immediate dangers are
legal and constitutional. The White
House just threw a cloak of legitimacy around arbitrary discrimination against
Muslims and, in doing so, Trump employed an explicitlyreligious rationale. This
puts us in exceedingly dangerous territory.
Remember
Nixon’s second-term challenge to the other branches to “epic battle?” That was mostly posturing on Nixon’s part,
because he was already deeply embroiled in the Watergate conspiracy. But Trump’s refugee order is the equivalent in
our time and poses a tremendous challenge of moral, legal and institutional response. Of course there will be a response from
outside the government, but what about inside?
I can barely believe that responsible officials in the DOJ and the State
Department, in particular, will support this action.
There
is an additional very troubling feature of Trump’s action that should not get
lost in what I assume will be an enormous reaction to its discriminatory
character. The action is also wholly
arbitrary. There is no rational basis
for this policy. This is like policy as
fantasy football, policy as vanity plate.
There is no evidence of an increased danger to the US from Syrian
refugees or any other refugees. If
terrorism is the problem, I suppose we might be more concerned by people
traveling from France and Belgium than Yemen and Somalia. But however we analyze the policy, the
underlying reality is that it is not the result of any rational policy
process. There was no process. This is pure prejudice.