The fate of the new ban will be decided in the streets – not in the courts. So don’t assume that judges can do the heavy-lifting for us
The first travel ban was a fiasco, but will the second one be? Political pressure on the streets was the crucial factor behind this early victory against Trump’s authoritarian racism. The spectacle of simultaneous direct action at multiple international airports formed the political backdrop for the legal proceedings initiated against the ban. We have protesters – and not the courts – to thank for this win. Let’s not forget that as we prepare for round two.
It is unlikely that so many judges would have felt compelled to hear legal challenges so quickly – and to respond with a stay and restraining orders shortly thereafter – had they not been aware of mass anger. That anger was unmistakably expressed through rapid and confrontational protests at what are some of the most heavily policed and strictly surveilled public spaces in the world.
Legal intervention was a necessary step in the fight against the ban, but only a vigorous exercise in mass democracy was sufficient to secure a victory. It was not a total victory; none of the orders reversed the ban in its entirety, and Customs and Border Patrol personnel at multiple airports did not scruple to detain people simply because judges told them to stop. But Trump clearly provoked widespread opposition.
His Islamophobic intent was unmistakable and – crucially – it was broadly and publicly contested. Trump didn’t just lose prestige. He stumbled into a confrontation with the courts, one sufficiently bruising that he has been forced to revise his ban.
The administration claims that the revised order does not discriminate on the basis of religion. However, it reproduces the same list of countries of concern singled out in the first ban (except for Iraq). Those states – most of which have been bombed or occupied by the US – are majority-Muslim. It’s hard to see how the Islamophobic animus behind the first version of the ban has somehow vanished through the process of revision.
The revised ban is meant to survive a court challenge. Nevertheless, the same organizations and legal collectives that battled the first have vowed to do the same with this one – only now with the knowledge and experience forged in urgent struggle. This should not be cause for complacency.
The court orders against the first-ban were hard-won and partial victories, made possible only through contestatory politics. Fighting the revised order is a task for large groups of people, organized and standing in solidarity with one another.
Trump clearly enjoys issuing executive orders – they suit his disdain for deliberation and debate. It may be tempting to criticize him as dangerously unconstrained for seeking to rule through executive orders, but he is not the first president to do so. Trump’s use of them is novel only in its macabre theatricality.
Both George W Bush and Barack Obama were fond of executive orders. Nor are executive orders anything less than legally binding instruments for directing the activity of the executive branch – and that remains the case even when Trump issues them.
We can deplore Trump’s authoritarian pretensions without deluding ourselves that he is a lawless despot. Claims to the effect that Trump has plunged the US into a state of exception – a crisis of legality itself – are not only inaccurate but dangerous. They obscure the fact that millions of vulnerable and marginalized people already live in a state of exception, facing state violence and discrimination every day.
Trump has inherited a massive deportation regime from Obama, who oversaw the unprecedented expulsion of millions of undocumented people from the US. We cannot be content with undoing Trump’s ban, congratulating ourselves that we could then return to a status quo that is in any way acceptable.
The success of the wave of actions against the first ban must inspire renewed protest, not only against the new ban but against the maintenance of racism, xenophobia and social hierarchy through state power. The courts cannot do that for us. Only collective action – the confrontational, disruptive and sustained practice of mass democracy – can do that.