A political theorist on the ethics of Trump’s “Muslim ban”
The Supreme Court, by a 5 to 4 vote, just upheld President Trump’s travel ban on immigrants from several predominantly Muslim countries, including Iran, Somalia, Syria, and Yemen.
The decision puts an end to the legal disputes over the constitutionality of Trump’s travel ban, but the ethics of the policy remain highly debatable. Do we have moral obligations to refugees fleeing horrendous conditions in their home countries? Is the ban consistent with core American values like fairness and justice? And what rights do states have to accept or reject refugees based on the expected burdens it might impose on their societies?
In January 2017, shortly after Trump announced his travel ban, I interviewed Joseph Carens, a professor of political theory at the University of Toronto and a dual citizen of Canada and the United States. The author of The Ethics of Immigration, Carens’s work focuses on the challenges involved in applying democratic principles to immigration policies.
I spoke with Carens about the ethics of Trump’s travel ban as well the normative questions it raises about human rights.
A lightly edited transcript of our conversation follows.
What do you see as the basis of our moral obligations to admit refugees?
I think there are at least three overlapping bases for these obligations. The first is that the US is sometimes responsible for the fact that someone has become a refugee. For example, people in Iraq and Afghanistan who have helped American forces by serving as translators or in other capacities have sometimes been put at risk because of this service. There are already stories of such people being excluded from admission (and hence, safety) as a result of Trump’s policy.
The second basis for the obligation to refugees is simply the humanitarian duty to help people in desperate straits when one can do so. This duty has its roots in many different religious and secular ethical traditions. The United States has traditionally admitted more refugees than any other country (although Germany has clearly passed the US in this respect in the past few years). The complete ban on refugee admissions for four months and the subsequent reduction (by half) of the number who will be accepted is a failure to meet America’s humanitarian obligations.
The third basis for the obligation to refugees is that the United States and most other countries have acknowledged that the international state system has a duty to protect refugees. In the wake of the failure of democratic states to protect Jewish refugees from the Nazis, the United States led the effort to create institutions that would prevent such a moral failure in the future. That regime already suffers from severe limitations, and the new Trump policy will undermine it further.
What are the moral limits on what states can do to individuals in a democratic society, and why is the answer to that question relevant to thinking about immigration policy?
I’d say that we have principles that everyone recognizes. For example, people have a right to a fair trial, to freedom of religion, to freedom of speech, to freedom of movement. Now, many of these things are put into the Constitution and the Bill of Rights, but there are overlapping rights that are freestanding norms that we have about how you can treat people or what it’s reasonable for the government to do. These are basic norms of fairness and reciprocity, principles that we hold to be transcendentally true.
I’ll stop you there for just a second and ask an obvious question: What do these norms and rights have to do with immigration in particular? I imagine many people will associate these rights with citizenship, or membership in a defined polity.
Well, this includes norms about how you can treat noncitizens. People sometimes think that all rights are due to citizenship, but that’s just not correct in the empirical or legal or normative sense. So take the right to a fair trial. If you’re a noncitizen and you’re accused of a crime, you’re supposed to be treated exactly the same way a citizen is. You have the same rights that a citizen does in this area. In fact, permanent residents have virtually all the rights that a citizen has except for the right to vote.
In your book, you say that contemporary reflection about refugees begins in the shadow of the Holocaust. Countless Jewish people fled Hitler in search of protection, and most of them did not get it. Do you see Trump’s travel ban on, say, people fleeing civil war in Syria as analogous in any way?
Absolutely. I think this is a point that’s been made by a number of Jewish groups who are trying to welcome Syrian refugees. It’s an irony, as many have noted, that this policy was announced on Holocaust Remembrance Day. At the time of the Holocaust, there were lots of Jews trying to flee Nazi Germany, and many Western states, including America and Canada, refused to accept them.
President Trump’s answer to the question of how many Syrian refugees are too many seems to be “none.” None is too many. In the wake of World War II, in the wake of seeing what happened, we vowed never to let that happen again, and that’s exactly what we’re doing in the case of Syria.
These people’s lives are at stake, and if the United States turns them away, why do we assume other countries will take them in? And if no one else takes them in, what do we think will happen to them?
There’s a lot of discussion about the legality of Trump’s travel ban, but here I’d like to dive into some of the deeper ethical objections. I’ll start with this: Do you think this policy will produce more suffering than it relieves?
The goal of the policy is to reduce the threat of terrorism, but many objectors (rightly) think that the policy’s actual effect will be to increase the threat of terrorism because it will alienate Muslims throughout the world and will confirm the claim of ISIS that the United States is fundamentally hostile to Islam, but it won’t actually aid in preventing the entry of people who might pose a threat.
This is an important, and, in my view, persuasive argument about the likely consequences of the policy, and so a good reason for rejecting it, but it is an ethical argument only in the very limited sense that any policy that causes more harm than good with respect to a legitimate goal (like reducing the threat of terrorism) can be said to be bad from a moral perspective.
What about the claims that it runs counter to fundamental American values?
Openness to immigrants and refugees has played a key role in making the United States what it is today and is a central element in the American ideal. This need not entail denying the reality of practices of marginalization and exclusion of immigrants and refugees at many points in the American past. Rather, it reflects a commitment to live up to the ideal and not to repeat those failures.
This sort of objection to Trump’s policy focuses on values and ideals, and, in that respect, it is clearly a moral argument. On the other hand, within some limits, deciding what you want your country to be is clearly the sort of thing that democratic politics is supposed to be about.
Perhaps the most essential moral objection is that a policy like this violates basic principles that are supposed to limit or constrain democratic politics — justice, fairness, equality, individual freedom.
I think this policy does that in two obvious ways.
First, in imposing restrictions on entry that take immediate effect, it violates norms of fairness. As everyone knows, the policy has stranded people abroad who had already been living in the United States as well as people who had been given permission to come and had made life plans on that basis. To deprive people of a right to enter the United States that they had previously been granted and which they have done nothing to forfeit is unfair.
The Trump administration has already implicitly acknowledged this moral failure in changing the policy so that it no longer restricts the entry of green card holders (i.e., people entitled to live in the US as permanent residents), but this still leaves a great many people who have done nothing wrong stranded abroad with their lives disrupted. For example, students cannot get in to continue or start their studies, workers with permits other than green cards cannot return, and so on. These exclusions are simply arbitrary.
Second, the policy violates the moral principle that it is wrong to discriminate on the basis of religion. The seven states whose citizens are not permitted entry are all overwhelmingly Muslim. Trump himself has implicitly acknowledged that it is wrong to discriminate on the basis of religion by denying that he is doing so. This recalls the old saying that hypocrisy is the tribute that vice pays to virtue. In this case, however, the hypocrisy is so blatant, given Trump’s past and present statements about Islam, that no one who cares about reality can take his protestations seriously. This policy is clearly and deliberately aimed at restricting the entry of Muslims.
Why is the distinction between migrants and refugees so important, and why do refugees have a stronger claim upon host societies for aid and sanctuary?
Migrants are people who want to move from one country to another. They may have good reasons for moving or bad reasons for moving. Refugees are people who have a desperate need to move: They’re not safe in some fundamental way and they need to leave. So their claim to move is much stronger, and we all recognize that. The United States has signed the Geneva Convention on refugees. Even Trump doesn’t deny that refugees have some kind of claim, he’s just not willing to meet it. He’s concerned about those who are suffering and desperate, but he’s not prepared to say what he will do to help them.
What rights do states have to determine that accepting or admitting refugees imposes unsustainable burdens or risks on their society?
Nobody thinks that states have to admit people who actually are terrorists, and so it’s reasonable for a state to do some vetting. Nobody thinks a state should admit so many refugees that it cannot function. But in a lot of cases, this involves what one thinks is a reasonable assessment.
So the idea that because someone might be a terrorist, or there’s a tiny chance that someone’s a terrorist, is not in itself a justification for shutting the doors. There has to be some kind of balance in terms of the judgments we’re making. Reasonable people can disagree about what that balance is, but the extreme standard that Trump is using is well beyond the standards of reasonableness.
There seems to be a problem of distributive justice here in which the burdens of accepting refugees are not dispersed equally across the nations of the world. How do we deal with that given the limits on interstate cooperation?
That’s an important issue, and there isn’t a structural solution to that, there’s nothing that can make a state accept refugees. So if the United States refuses to do, there is no one that can force us to do it. But that’s a question that every American should ask himself or herself: If we don’t take in these refugees, who is going to do it? And why do we think it’s reasonable to expect them to do it if we won’t? It seems to me that nobody is asking that question.
Right now there are millions of Syrian refugees in countries like Jordan and Turkey and Lebanon, and these are not countries that have caused this crisis in any way. They have no particular responsibility for these refugees, except for the fact that they’re next door. But there’s no reason to expect these countries to provide new homes for all of these refugees for the rest of their lives, and there’s no sign that this conflict will end anytime soon.
Here’s the thing: How many people actually ask themselves what will happen to these refugees if we don’t take them in? I think a lot of people blind themselves to this question. They’re not willing to contemplate the consequences of refusing entry to these desperate people, and that’s part of the problem.