I want a database for the refugees that—if they come in the country. We have no idea who these people are. When the Syrian refugees are going to start pouring into this country, we do not know if they are ISIS; we do not know if it is a Trojan horse. And I definitely want a database and other checks and balances. We want to go with watch lists. We want to go with databases. And we have no choice.
At the time these words were uttered in November 2015, US political elites could not have imagined the speaker would become the president of the United States of America. Surely, his brash populist rhetoric would turn off the average Republican voter whose views, albeit conservative, still upheld liberal principles.
But on 8 November 2016, Donald Trump became the personification of the right-wing populism bubbling up after decades of major demographic and structural transformations in the United States. With increasing immigration from Latin America and Asia coupled with a decrease in birth rates of whites, the United States in 2045 will transform into a minority-majority country. Whites will comprise forty-nine percent of the population in contrast to twenty-five percent for Hispanics, thirteen percent for blacks, eight percent for Asians, and four percent for multiracial populations. These imminent demographic changes have triggered a near-hysterical anxiety and aggression among blue-collar and middle-class whites who fear their country is being dangerously usurped by a collectivity of Muslims, immigrants, Latinos, Jews, and gays.
Portraying himself as their redeemer against the corrupt political elite Trump claims is responsible for the material demise of “real” Americans, he promised to “Make America Great Again.” Notably, Trump did not promise more democracy or more freedom. Rather, he promised to preserve white Christian Americans’ political hegemony.
In his populist frame, the innocent, white working-class Americans are victims of the elite political establishment intent on replacing them with low-wage brown bodies who would become citizens, wear their saris and hijabs, build their mosques and temples, refuse to give up their native tongue, bolster a multicultural American identity, and vote out the predominantly White male political elites.
Contrary to portrayals of Trump as an irrational demagogue, he is a skilled populist who exploited a political reality where sixty-five percent of white Americans were open to voting for a party that stopped mass immigration, provided American jobs to American workers, preserved America’s Christian heritage, and stopped the threat of Islam.
These white men and women felt left behind by the monied and cosmopolitan American elite. Trump re-directed their anger at the liberal elites whom he blamed for sending Americans’ jobs abroad, the undocumented immigrants supposedly stealing jobs, elite secularists oppressing Christians, and the multiculturalists eroding Anglo-Saxon Christian cultural dominance.
These anxieties created an opportunity for Trump to position himself as the White nationalist savior who would bring back the “Golden Age” when Whites took priority over Blacks, brown immigrants were excluded, America was a Christian nation, and traditional values granted men their rightful place at the top of a patriarchal society.
If elected, Trump promised to reverse the demographic transformation that would make Whites a minority within three decades. And like a good populist, Trump depicted anyone opposed to him as enemies of the state conspiring to destroy America. Liberals are traitors. Establishment Republicans are corrupt. Muslims are terrorists. Mexicans are rapists and criminals. Blacks are cheaters. And women are treacherous or infantile. His campaign rallies turned violent as he spewed xenophobia, racism, and Islamophobia shamelessly. Trump rebuked his critics as peddlers of political correctness seeking to cower his right-wing base into silence.
Trump masterfully rode the wave of right-wing populism, triggered by the election of the first Black US president, all the way to the White House. Once there, Trump attacked any person or institution that dared criticize him. He delegitimized the very institutions essential to a liberal democracy.
Trump dubbed mainstream US media such as CNN and the New York Times as “the enemy of the American people.” Any news critical of his administration was dismissed as fake news. He called liberal journalists scum and losers.
Meanwhile, Trump endorsed right-wing propaganda as legitimate media. Websites that used to be dismissed as fringe such as The Daily Caller, Infowars, Breitbart, and The Rebel Media were propped up by Trump’s administration as a source of accurate news to his white nationalist political base.
The assault on liberal democratic institutions, however, did not stop there.
Trump attacked the judges who struck down his executive order categorically banning millions of Muslims, including Green Card holders, from over seven countries. He questioned the validity of elections that flipped the US House of Representatives from a Republican to Democratic majority. He fired his first director of the Federal Bureau of Investigations (FBI), James Comey, when Comey refused to pledge blind loyalty to Trump. And Trump portrayed himself as a victim of a witch hunt by special counsel Robert Mueller who was investigating Russian interference in the 2016 presidential elections.
Each time Trump attacked the media, the judiciary, the FBI, and federal prosecutors, he chipped away at the legitimacy of a free press, an independent judiciary, the electoral process, and law enforcement agencies. In turn, the institutions that undergird a liberal democracy are now being called into question by critical masses of the American populace.
The slow erosion of democratic norms has normalized a creeping authoritarianism originating from the White House. Indeed, Trump boasts his support for the tactics of Russia’s Vladmir Putin, Egypt’s Abdel Fattah al-Sisi, and the Philippines’ Rodrigo Duterte. In Trump’s words, they are “amazing” leaders, doing a “fantastic” job. Trump unwaveringly defends Saudi Arabia’s Mohamed bin Salman despite the CIA’s report finding he ordered the assassination and dismemberment of Saudi dissident and Washington Post columnist Jamal Khashoggi.
In addition to spreading propaganda against his critics, Trump instrumentalizes law to propagate his White nativism. Whether through changes in education policies that transferred public funds to Christian schools through a voucher program or immigration enforcement separating Central American migrant parents from their children at the border; Trump does not hesitate to use the full force of the executive’s legal authorities to appease his right-wing base.
His most successful exploitation of law in pursuit of his xenophobic populist agenda is arguably the Muslim Ban. After more than a decade of government surveillance, policing, and prosecution of Muslims in a billion-dollar national security industrial complex, the American public is primed to see Islam as a security threat. Indeed, the number of adult Americans who believed Islam is more likely than other religions to encourage violence among its believers reached fifty percent in 2015.
An influential Islamophobia industry was frightening Americans, sixty-five percent of whom had never met a Muslim as of 2017, that mosques were terrorist factories and religious accommodation of Muslims was part of a stealth plan by these invaders to destroy Judeo-Christian culture. The Islamophobia industry in coordination with right-wing Republicans convinced more than half of America that Islam is violent political ideology. And as a result, the practice of Islam is not protected by religious freedom laws.
Hence it should come as no surprise that seven days after his inauguration, Trump issued Executive Order 13769 categorically banning Syrian refugees and citizens of seven Muslim majority countries. In this executive act, Trump was merely keeping his campaign promise in 2015 to impose “a total and complete shutdown of Muslims entering the United States,” based on his claim that “there is great hatred towards Americans by large segments of the Muslim population.”
Trump promised he would only allow people into the United States who passed an ideological certification that ensured in his words “we are admitting to our country [those who] share our values and love our people.” And by our people, he was clearly referring to white and Christian Americans.
A Reuters poll conducted in January 2017 reported that fifty-one percent of Republicans “strongly agree[d]” with the ban while fifty-three percent of Democrats strongly disagreed with the ban. The country’s polarization would only worsen the longer Trump stayed in power.
The latest act in this populist tragedy is the invocation of executive emergency powers to build a wall on the southern border with Mexico. Rebuking Congressional refusal to fund the wall—which is unquestionably a xenophobic ploy (and a very expensive one at that) rather than a national security measure—Trump is usurping the military’s budget.
By presenting domestic immigration issues as existential threats to the state’s national security, Trump—like other autocrats—shifts from the politics of the ordinary to the politics of emergency such that he is able to expand his legal authority to take extraordinary measures.
The securitization of populism, whether with regard to Muslims or Mexicans, marries law and security—a textbook strategy of an autocratic executive.
As was the case in the Muslim Ban blessed by the US Supreme Court as falling within the executive’s broad authority to enforce immigration and protect national security, the courts are unlikely to offer relief to liberal democrats opposing the Wall. Emergencies provide legal cover to torture, indefinitely detain, drone strike, build walls, set up checkpoints, and close borders. The “others” freedom must be given up to secure “our” order.
It is at these moments of manufactured political crisis when law’s fragility is on full display.
At the precise moment when liberalism claims law will shield the people from the dangers of autocracy is when law is weaponized by the autocrat.
If there is anything we have learned from the past two decades, it is that law is a vessel that can be filled with whatever the controller of the vessel chooses. The fragility of the law, thus, is not as much about the composition of the vessel itself as it is the politics of power that determine who decides what will fill the vessel.
Will it be filled by a populist, an autocrat, or a select elite? Will it be filled by a collective of institutions, and if so, who controls these institutions? How easily can the contents of the vessel be changed by those who find it to be a tool of oppression?
The challenge we face as legal scholars and practitioners is being clear-eyed in identifying the values that undergird the law in a particular context and who determines those values.
For to be sure, the vessel will always oppress some while liberating others. It is by acknowledging this truth that we recognize our own fragility reflected in the mirror we have come to call the law.
[This article is based on a keynote lecture delivered at the conference Law and Society in Africa in an Era of Global Fragility, held at the American University in Cairo in collaboration with the University of Cape Town on 1-3 April 2019.]