Revisiting “The Muslim Registry”

In light of recent events, including Donald Trump’s firing Sally Yates, the Acting Attorney General, I thought I’d re-post this item from November, on the so-called “Muslim registry.” Actions like Yates’s were just what I had in mind when I wrote the post. My hope is that others will emulate her.

A postscript: In the November post, I mentioned that I had intended to try my proposal out on the Bergen County Prosecutor, Gurbir Grewal, on a visit he was making to my university that week. The question I asked him back in November was whether he would be willing to withhold county law enforcement resources from efforts to enforce unconstitutional deportation orders. He side-stepped the question to some degree, pointing out that he was obliged, in the case of undocumented aliens within his custody, to pass relevant information on to the federal immigration authorities, and presumably to cooperate in any legal proceedings they initiated.

Unfortunately, there’s no clear connection between the authority and responsibility of a county prosecutor like Grewal, and Executive Orders of the sort handed down by the Trump Administration. Trump’s Executive Order on entry into the United States operate at international border crossings, but though Bergen County has its share of undocumented aliens, it doesn’t have an international border crossing. (The one airport within its boundaries, Teterboro, is what’s known as a “general aviation relief airport,” serving private aircraft and charter companies.)

Still, Bergen County aside, some New Jersey municipalities–Newark, Jersey City, East Orange, Maplewood, and Princeton–have effectively declared themselves sanctuary cities. It’s uncertain how effective they’ll be, and I’m skeptical about the prospects of getting such a declaration in my own somewhat centrist town, Bloomfield. In any case, I regard the sanctuary city idea (along with strategic civil disobedience and related ideas) as among the most promising of the available options for activists, lawyers, and policy makers. And now we have a role model.

Further postscript, January 31, 2017: A message from Michael Venezia, Mayor of Bloomfield:

#BloomfieldNJ I’m sure you have heard about President Trump’s recent immigration executive orders and you may be wondering what they mean for #BloomfieldNJ, particularly on the question of Sanctuary Cities. Here in New Jersey, the term does not apply like it does elsewhere, because all local police departments follow the same guidelines from the NJ Attorney General that say only people arrested for indictable offenses are to be checked for immigration status. This means that if an undocumented immigrant is charged with a serious felony he or she will be reported to the federal government. But it also means that people charged with minor criminal offenses or traffic violations, or people who are victims of crime or witnesses who are undocumented do not need to fear deportation and can interact with law enforcement without fear.

In order to keep our community safe, residents need to trust the police and feel like they can go to them to report crime without fear. That’s why policies like this one are so important, because they send a message to residents that they don’t need to stay in the shadows here in Bloomfield.

Bloomfield is a welcoming community and diversity is one of our best assets. People from many different cultures come together here to live and raise their children, and all of them should feel valued and respected. That is why the current political atmosphere and rhetoric is so troubling. Please know that our local government believes firmly that everyone deserves a chance to make a life here and we will do everything in our power and under the law to protect our residents.

16 thoughts on “Revisiting “The Muslim Registry”

    • She’s entirely within her legal and professional rights to defy the order. As a legal matter, the Preamble of the Constitution makes a substantive commitment to justice part of the law:

      We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

      Trump’s Executive Orders violate justice in an obvious, transparent way. From an article in The New York Times:

      Mr. Trump’s executive order prompted a new challenge for Ms. Yates, who was serving until the Senate confirmed a new attorney general. The Justice Department’s Office of Legal Counsel had reviewed and signed off on the order, but Ms. Yates believed that the department had to also consider the president’s intent, which she said appeared aimed at singling out people based on religion.

      Mr. Trump had promised to do as much. His campaign website still calls for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” After the decision was announced, one of his advisers, Rudolph W. Giuliani, the former mayor of New York, said in an interview that Mr. Trump had wanted a Muslim ban but needed “the right way to do it legally.” Mr. Trump then said in an interview with the Christian Broadcasting Network that Christian refugees would be given priority for entry visas to the United States.

      Trump’s statements give Yates reason to believe that his Executive Orders are part of an intended pattern of discriminatory and ill-considered policies. If she believes that those policies are unjust (as they are), she is within her legal rights as Attorney General to defy his order. If she is right, she has not merely substantive justice but constitutionality (and legality) on her side. That’s the way the Constitution is written. The article you’ve cited ignores that fact, treating the Preamble as though it was rhetorical window dressing. It isn’t. It’s the law.

      Further, as a matter of professional ethics, the Attorney General is a professional, not a slave. She is obliged to execute a reasonable order justified in a reasonable fashion, but she has no professional obligation to execute a brazenly irrational order that is offered by pure fiat. She said, quite correctly, that she had not been convinced of the legality of Trump’s order. It is the President’s job to convince her, not simply to issue brainless orders/tweets at her. His failure to do so is dereliction of duty on his part. It is part of her official job description to give advice, and that is exactly what she is doing here: she is giving the advice that the rationale for this order is too thin to be worthy of execution by the law enforcement authorities of the United States.

      From the Justice Department’s description of the job of Attorney General:

      The Judiciary Act of 1789 created the Office of the Attorney General which evolved over the years into the head of the Department of Justice and chief law enforcement officer of the Federal Government. The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested. In matters of exceptional gravity or importance the Attorney General appears in person before the Supreme Court. Since the 1870 Act that established the Department of Justice as an executive department of the government of the United States, the Attorney General has guided the world’s largest law office and the central agency for enforcement of federal laws.

      The basic issue is no different from my receiving an irrational “order” from my university president. She may be my boss, and I may be her subordinate, but it doesn’t follow that she can order me to do just anything, and expect automatic compliance, even if the order takes the proper form–no matter who she is, and now matter who I am relative to her. Imagine a properly formatted order to me that demanded that I give my students As for believing in God, and Fs for being atheists. As a matter of professional ethics, I would be well within my rights in flouting the order, and waiting for her to fire me if it came to that. I don’t have to do her the favor of resigning. The nature of our professional relationship, and the context in which it operates, precludes interactions of the kind Trump envisions: as a matter of ethics, a professional relationship in civilian life is guided by more than the sheer fact of hierarchy.

      So I would infer that Yates was well within her rights to dig in her heels. If he didn’t feel like convincing her, or didn’t think he could, he had the prerogative of firing her. Having fired her, of course, she had the legal obligation to comply. Which is more or less what happened.


      • He was, no doubt, anxiously awaiting the opportunity fire someone in such a high-ranking position. It’s his entire claim to fame, after all.


    • There’s an incoherence in the Schmitt piece that I didn’t mention in my previous comment. Schmitt opens by saying this (my numbering):

      (1) The lead headline in Tuesday morning’s Washington Post screamed “Acting attorney general fired over ban.” Technically, the Acting Attorney General Sally Yates, a holdover from the Obama administration, was not fired “over [the immigration] ban.” She was canned because she refused to have the Justice Department defend the White House’s executive order temporarily putting a hold on entry into the US for citizens and refugees from seven Muslim-dominant countries.

      Near the end of the article, he says:

      (2) But the Trump White House did itself no favors when it released a statement labeling Ms. Yates “an Obama Administration appointee who is weak on borders and very weak on illegal immigration” at the same time they announced her firing—in essence conflating the key constitutional issue of the executive line of authority with a dispute with her over policy.

      Passage (1) claims that Yates was not fired over policy differences. Passage (2) admits that she was. The incoherence is papered over by a vague and unexplained allusion to technicalities. But if your boss says you were fired for reason X, then you were fired for reason X. A person who insists that it wasn’t X but Y is engaged in special pleading, especially if reason X is problematic and reason Y is supposed to exemplify principled action–that is, action that never took place.

      Schmitt’s rhetorical gamesmanship is typical of the moral drift of the contemporary American right: they’ll never miss an opportunity to make an excuse for Donald Trump, even if they have to re-write the facts to get the excuse off the ground. These are the people who told us to give Trump a “chance to govern.” Now that he’s governing in the insane fashion that his critics predicted, they’ve invented a parallel universe of benign policies and statements to defend, ascribing them to Trump, but ignoring the fact that they don’t apply to the actual person inhabiting the White House. The corollary has been to invent a parallel universe of the consequences of Trump’s policies and statements, ascribing them to the world while ignoring the fact that they don’t quite manage to describe it.

      It all reminds me of that famous quotation of Nietzsche’s, from Twilight of the Idols (section 19): “We have abolished the real world. What world is left? The apparent world, perhaps? But no, with the real world we have abolished the apparent world as well!” With the real and apparent worlds out of the way, you might expect Zarathustra to make an entrance. Who knew that we’d get Donald fucking Trump instead? But we did. Maybe we should bring the real world back?


      • You gotta admit, though, Donald Trump makes the Übermensch seem like a slightly more attractive character. I just can’t imagine the Übermensch being so infantile. But maybe Nietzsche just made a mistake about that.


  1. A thought:

    What we are witnessing in the US at the moment is a clash between what Max Weber called the “rational” form of rule (by bureaucratic professionals) and the “charismatic” form of rule (by a leader who commands personal, rather than institutional, allegiance). According to Weber’s analysis in his political writings, the charismatic form of rule is the only one that has a reasonable chance of actually winning against the rational form of rule, as represented by the bureaucracy. At the same time, Weber, in his scientific writings, conceded that the bureaucracy, on the strength of its institutionalised knowledge and know-how (not the same thing), in the long run will always be more powerful than any layman (The bureaucracy is more knowledgeable, and therefore more apt at commanding compliance with its wishes, regardless of what these wishes are. Charismatic leaders must keep their charisma intact).

    The question is whether the bureaucracy can withstand a determined assault until such time as either the charismatic leader’s pool of allegiance runs out, or the charismatic leader disappears from the scene. I’m not sure about this: Trump will soon realise he needs competent bureaucrats, just as the Allies after WWII realised they couldn’t do without Nazi bureaucrats if they were to run the country. The question is whether he’ll be able to domesticate the bureaucracy before the point in time when he needs it to be co-operative. Bureaucrats have a mantra, “we were here when you got here, and we will be here when you leave.” There are ways to slow things down.

    We shall see.


    • A modest suggestion: Weber’s charismatic/bureaucratic distinction was always a false dichotomy; Obama, if no one else (e.g., popes, whose authority depends on their charisma, which depends on bureaucracy, which depends on charisma), proved that it’s a false dichotomy (because he was about as charismatic as Jesus, and got elected in ’08 purely on the strength of his charisma, but ruled bureaucratically, and yet still got re-elected, for good reason). A less modest suggestion: Weberian social science is a dead end; let’s abandon the pretense to value neutrality and just acknowledge rot when we see it.


      • Weber explicitly says that the bureaucratic principle never exists in its pure form, and that the top layer of bureaucrats will always be chosen by a non-bureaucratic principle. He doesn’t even begin to pretend at value neutrality, he claims to be descriptive, and was very much and openly value-driven in his political writings. Sometimes, it helps to actually read stuff, and I wonder how many critics of Weber have done so.


        • I was being intentionally glib, but more seriously, I don’t know that it matters much that the distinction isn’t supposed to be between things that we find instantiated in their pure forms in the real world. Weber takes a lot of flack for working with coarse-grained typologies that aren’t well suited to fine-grained analysis, but I don’t think that’s really a very powerful criticism. My serious complaint would be not that concrete instantiations of the phenomena never fully match the ideal types, but that this particular distinction seems to break down when applied to a number of cases, and that it seems only very vaguely relevant in this case. It may be that you can say more to show otherwise, but from what I can tell the charismatic/bureaucratic distinction applies here only in the fairly trivial sense that Trump & co. are gaining power on the strength of their perceived charisma among people who distrust the bureaucracy. But we knew that already, and it’s not a fancy social scientific point, just a commonplace of political journalism — and one that, so far as it goes, applies equally well to Obama and Reagan. If something applies to Obama, Reagan, and Trump, we need a more fine-grained analysis.

          My point about value-neutrality was intended to be slightly more serious, but it’s understandable that it didn’t communicate what I really meant. Weber’s ideal of social science is in fact that of purely descriptive, value-neutral theory. At least, that is what I gleaned from reading him years ago, and that is how he is very standardly represented. Of course he did not think that a person could or should be value-neutral in all areas of life. He simply thought that sociology should be. That’s exactly what I think is a mistake. Value-neutral sociology might have its usefulness, but ultimately an adequate understanding of social life needs to be evaluative and normative. For a brief argument to that effect that I accept at least in outline, you might have a look at the first chapter of John Finnis’ Natural Law and Natural Rights, ‘Evaluation and the Description of Law’ — which, nicely enough, appeals to Weber against Weber (and, coincidentally, contains a nice elaboration and defense of Weber’s ‘ideal types’ via Aristotle’s device of central case analysis).


      • David,

        This question may sound off-topic, but it was inspired in part by all this discussion of “charisma”: do you know anything worth reading on the concept of cleverness (deinotes) in Greek thought and practice, in particular on the contrast between the exercise of phronesis and cleverness in political life?

        I guess the relevance is obvious: Trump seems a perfect exemplar of cleverness divorced from practical wisdom. But it’s uninformative to say that he’s good at instrumental reasoning relative to his goals–though that’s true enough. The deeper point is that he’s uncannily clever when it comes to the adoption of the goals themselves; he knows how to tap into the national id and harness it to his ends. I seem to remember that the clever person, for the Greeks, inspires fear, dread, or a kind of amoral awe–as Trump does. So it seems the perfect concept for our political situation. But all I know of it is the quick contrast drawn in Nicomachean Ethics VI.


        • I’m not sure I agree with that description of Trump — some of the policies he’s adopting seem likely to make him very unpopular even among people who voted for him; if he goes for that 20% import tax on goods from Mexico, he’d better find another way to keep prices from rising and hurting the pocketbooks of Republican voters — but there’s something to it, at least. I wonder how much influence Bannon has; much as I despise that guy, he does seem to be deinos.

          It’s not on deinotēs as such, but the locus classicus for the kind of thing Aristotle is talking about in Greek literature and culture more broadly is Detienne and Vernant’s Cunning Intelligence in Greek Culture and Society. Detienne and Vernant are structuralists (in the anthropological, Levi-Strauss sense), so their discussion reflects the vices and the virtues of that general approach (mainly, on the vice side, an apparently almost a priori conviction that cultures are coherent systems of signs, which sometimes brings with it an indifference to details and apparent conflicts and disagreements in different pieces of evidence in a way that many more traditional scholars consider cavalier). But they’re not boring.

          Aristotle’s distinction between phronesis and deinotes is more often invoked than illuminated in the literature I can think of. I can’t recall a particularly insightful treatment of it, but it could be worth taking a look at C.D.C. Reeve’s commentary on Nicomachean Ethics VI – though with the caveat that he cites very little other literature despite taking many distinctive and controversial positions.


    • I don’t know that part of Weber well enough to comment on the charismatic/bureaucratic distinction. I just think that the distinction may end up being irrelevant here. It’s an empirical matter whether Trump could in principle fire huge swatches of the bureaucracy and replace them with personnel more amenable to his policies and presidency. It is entirely possible that there are people out there who are at least minimally or nominally qualified for the relevant positions, and would be glad to replace anyone that Trump fired. It’s even possible that there are people out there who are entirely qualified for the relevant positions, happen to be pro-Trump, are not currently employed by the bureaucracy, but are chomping at the bit to do it. Think of how many competent, even brilliant, lawyers were willing and able to write torture memos for the Bush Administration.

      I’ve encountered a surprising number of white nationalists in and around the academy and the libertarian movement. If there are more of them than anyone realized, they’re well educated, able to pass the Civil Service Exam, and are good at “covert operations” (good at hiding who they really are or what they really believe), Trump may have the luxury of firing a lot of ordinary bureaucrats and replacing them with Trumpian bureaucrats. (I don’t mean to suggest that all of the replacements would be white nationalists, or even that Trump is looking specifically for white nationalists. I mean that a clever white nationalist would have a career path under Trump that she might not otherwise have had.) That would amount to a kind of revolution-by-bureaucracy.

      I’m not sure that the anti-Trump opposition has fully reckoned with the preceding possibility. The opposition is so fixated on declaring Trump & Co. “incompetent” that it hasn’t fully come to grips with his distinctive competencies and the political resources he has (or may have) at his command.

      But yes, we shall see. Whether we shall overcome is another matter.

      Liked by 1 person

  2. Pingback: Revisiting the “Muslim Registry” (from Irfan Khawaja’s blog “Policy of Truth”) – THE OVER-RATED (MAKE AMERICA SAFE AGAIN)

  3. Max Weber describes the mechanism that leads to the rule by individual charisma being replaced by rule by charisma that is expected in certain families (i.e. the transition of clans led by a chosen leader of great personal qualifications to more stable groupings led by great families and their heads):
    “Qualification by own accomplishment was replaced by qualification by pedigree.”

    Now, I wonder:

    a) How does, on this description, rule by individual charisma (which normally is being frowned upon in polite circles: the pejorative epithet “populism” is easily invited) differ from the hallowed principle of meritocracy? Isn’t individual merit, ultimately, so much akin to personal charisma that it ends up being virtually the same thing?

    b) At least in Sweden, there is an observable tendency of the profession of politics becoming heritable: many current politicians have parents who were politicians, too. Is that the same thing as the beginning of the transition observed by Weber, that charisma is becoming heritable? Is that an age-old human tendency again breaking through the veneer of individual merit?


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