A Day of Shame and a Day of Pride

Friday was a day for Americans to be ashamed of our government. We’re a nation of immigrants and a nation of refugees. Except for the Native Americans, all of us came here from somewhere else and many of us came here to escape war and religious persecution. And we say we’re a moral people and a religious people. The Pilgrims’ journey from Europe to the New World; African Americans’ journey from slavery to emancipation to civil rights; the Jews’ and other religious minorities’ escape from Europe to America in the nineteenth and twentieth centuries—our story is the story of the Exodus and the Promised Land. It’s hard to write about this without lapsing into cliche, but what can we do except remind President Trump and his Republican enablers:

You shall not oppress a stranger, for you know the feelings of the stranger, having yourselves been strangers in the land of Egypt.

Is it American to keep these two elderly, disabled legal permanent residents out of the country because they are Iranian? Is it moral?

What happened on Friday was not just immoral but dishonorable. Two of the first people to be stopped at the border were translators who had risked their lives to translate or do other work for the US military overseas. Many current and former officers, notably including Representative Seth Moulton, a Democrat from Salem, Mass. serving his second term in Congress, are beside themselves that after years and years many translators are still living in danger overseas. It is particularly maddening that after these two translators were vetted and cleared, and after they actually made it to the United States, the government would take the position that they should be sent back.

Inscription over Langdell Hall: "non sub homine sed sub Deo et lege"

Friday was also a day to be proud of our country. Mass protests spontaneously took place around the country, and several judges, including Judge Allison Burroughs and Magistrate Judge Judith Dein here in Boston—at 2 a.m.!—stayed parts of the President’s order pending a full hearing. I’ve only seen one injunction, the one issued by Judge Ann Donnelly in Brooklyn, and I see that she was satisfied that the plaintiffs had shown “a strong likelihood of success in establishing that the removal of [the refugees] violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution.” This seems likely right to me, at least if the question is removal of people already in the United States as contrasted with denial of visas for people abroad, a topic on which I am sympathetic to the view that the executive should have more or less plenary authority. I’ve read the executive order and believe that it is poorly drafted. But it’s clear to me that even if aspects of the executive order are legal, the order is immoral and un-American.

The order directs agencies to give priority to members of persecuted religious minorities in the affected majority-Muslim countries, i.e., to Christians. Of course we should help persecuted Christians. But if the President and his political advisors sought to get a boost from Americans Christian leaders, it seems he has been disappointed so far. Just maybe, Americans of all political and religious stripes will be able to hang together to oppose what has happened.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

5 thoughts on “A Day of Shame and a Day of Pride

  1. Thanks, Ted, we all need to speak up about these betrayals of our national values! While also recognizing (as you do) that people, including lawyers and judges, are doing what they can to resist.

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