After more than a year of waiting, the U.S. Supreme Court finally heard arguments about the legality of President Donald Trump’s so-called “Muslim” travel ban. Yet one of the most discussed aspects of the arguments was an attempt by U.S. Supreme Court Justice Elena Kagan to compare the president’s policy to a hypothetical effort by an anti-Semite in the White House to impose such a prohibition on Israel.
That spoke directly to the concerns voiced by liberal Jewish groups such as the Anti-Defamation League, HIAS and the National Council of Jewish Women, which submitted briefs to the court urging it to reject Trump’s order. But much like the ADL’s disingenuous and hypocritical effort to smear Secretary of State designate Mike Pompeo as an anti-Muslim bigot, unpacking this argument exposes the wrongheaded nature of the attempt to damn the president’s policy or any effort to frankly discuss the threat of Islamist terror as prejudiced.
The administration has denied that the order affecting eight nations, including six Muslim-majority countries, is—as its critics contend—an act of religious discrimination. It argues that it is a carefully drawn measure that in its current form impacts nations already certified as terrorist hotbeds subject to restrictions by the Obama administration.
The case to uphold the right of any president to enact restrictions on immigration or travel based on security considerations is solidly based in the law. Trump’s opponents argue, however, that he must be considered an exception to the normal legal standard because his statements prior to being elected president about banning all Muslims from entering the United States betrayed his motivation.
Trump’s initial call for such a Muslim ban when he was a candidate for office was indefensible. But once president, his proposals were no longer indiscriminate, but narrowly based on both potential terror threats and the ability of the government to adequately vet those seeking entry to the United States. One can argue that the order is probably unnecessary or even ill-advised in terms of the message it sends to the world. But there is nothing irrational about worries about terrorism when it comes to countries like Iran, Yemen, Somalia, Chad, Libya, Syria, North Korea and Venezuela.
Given that not all of those countries on which restrictions were imposed are Muslim and that the order ignores dozens of Muslim-majority nations, the administration has a firm basis for saying that this cannot be considered a form of Islamophobia. But the plaintiffs say Trump’s December 2015 statement should render him ineligible to make the sort of judgments that the law would otherwise allow any other president to make.
That’s an argument that a majority of justices at the oral hearing this week didn’t seem to buy. But Kagan’s discussion of Israel and anti-Semitism is still worth examining.
The talk of an anti-Semite in the White House was something of a dog whistle. The ADL jumped on that bandwagon last year when it falsely sought to blame Trump for an alleged surge in anti-Semitic activity in the United States that was largely the result of a bomb threats from a deranged Israeli teenager.
Even if we ignore that aspect of Kagan’s suggestion, the hypothetical is still intriguing. What would we think if a president tried to ban travel from Israel? As the one Jewish state on the planet, that would seem to be an act of anti-Semitism.
But the argument breaks down when one considers that in order to be analogous to Trump’s action, there would have to be a credible threat of terrorism towards the United States from Israel.
While a world in which an open anti-Semite was elected president of the United States and Israel was a source of anti-Western terror doesn’t remotely resemble the world we live in (unless, that is, you’re prepared to consider a man, his other faults notwithstanding, with a Jewish daughter and grandchildren who has governed as a devoted friend of the Jewish state an anti-Semite), it is, as Solicitor General Noel Francisco stated in court, theoretically possible for such a ban to be legal.
Yet even if this counter-factual scenario were real, that would prove that Trump’s order is not a form of impermissible religious bias.
If Israel were yet another nest of anti-American terrorists instead of the United States’ sole reliable democratic ally in the Middle East, why wouldn’t a rational American president regard the entry of its citizens as a potential problem?
That’s a frightening and unimaginable thought that ought to jolt us back to reality. The fact is, however, that the one Jewish majority nation is not a threat to the United States, while many Muslim-majority countries do fit that description.
That doesn’t mean that all Muslims are Islamist radicals. But some are, and their numbers are not miniscule. When officials like Pompeo speak of security threats, they are right to call such people by their right names.
To pretend that this threat has nothing to do with religion—or at least one strain of Islam—might avoid even the appearance of stigmatizing Muslims. But that is neither a serious argument nor a rational approach to policy. That the ADL found itself alongside a group like the Council of American Islamic Relations that was founded by terror supporters (which ADL’s previous leadership condemned for its stand on terrorism) in opposing the ban tells us far more about who is in the right in this debate than citations of Trump’s speeches.
The attempt to muddy the waters by pretending that the ban could be applied to Jews is a classic misdirection play. Neither Israel nor Jews are preaching war against the West. To the contrary, it is the object of Islamist hate. For those whose job it is to speak up for Jewish security to take sides against Trump on this issue is a dereliction of duty rooted in liberal politics, not a defense of the constitution or religious freedom.
Jonathan S. Tobin is editor in chief of JNS — Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.
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