How Trump's Travel Ban Broke With the Principles of Conservatism

Senator Jeff Flake explains the origins of the president’s “profoundly misguided” policy.

International passengers arrive at Washington Dulles International Airport after the Supreme Court granted parts of the Trump administration's emergency request to put its travel ban into effect later in the week pending further judicial review, in Dulles, Virginia, June 26, 2017. (James Lawler / Reuters)

In December 2015, Donald Trump called for a ban on all Muslims from entering the United States. I found the act to be so morally repugnant and un-American that I issued a statement on Twitter: “Just when you think @realDonaldTrump can stoop no lower, he does. These views do not reflect serious thought.” Then my family and I attended afternoon prayers at the Islamic Center of the North East Valley, in Scottsdale, to let the congregation know that most Americans were not given to such intolerance. “I’ll bet you never thought you would see a Mormon speaking in a mosque,” I began my talk. “I think this is a surprise for me, too. We all know how we are different, but let me tell you a few ways that we are similar …”

The next day, I received a note from George W. Bush, who as president led the country through the grave and mournful pe­riod after September 11, 2001. He also had visited a mosque to offer important reassurance and to make the crucial and obvi­ous distinction between Muslims and radical jihadis:

Dear Jeff,

I saw your speech to the mosque in your state. I was deeply moved by your remarks. Moved by your leadership, your thoughtful tone, your reminder of the importance of religious freedom and your warm humor. Thank you for your voice of reason in these unreasonable times ...

During the campaign, I assumed that this shocking episode—among so many more—would be a political blunder from which Donald Trump would not recover. I readily concede that I got the politics wrong. I will even concede that I underestimated the populist appeal of Trump’s proposed Muslim ban. But I will not concede the underlying principle of religious freedom. If principle is only defended when there’s nothing at stake, then it is probably not much of a principle after all.

This article is adapted from Flake’s book.

Moreover, in the case of global jihad, we are provoking civi­lizational struggle between Islam and the West, or as the historian Niall Ferguson has put it, between “the West and the rest.” Ban­ning Muslims from America, or even appearing to do so, apart from being unconstitutional, would give the jihadis precisely the struggle they want, with the vast and varied Islamic world caught in between, some small percentage of them vulnerable to a radicalization that we could plausibly bear some responsi­bility for. In fact, when word of the president’s first executive order spread on the internet shortly after ink met paper at the Pentagon on January 27, dark jihadi cul-de-sacs online filled with praise for President Trump’s “blessed ban.” And so the legitimate targets of the president’s policy found perverse plea­sure in the order.

I find it difficult to believe that this could possibly have been the president’s intention. In fact, as for Trump’s ex­ecutive actions themselves, I believe he is in earnest when he says that he wants to do everything in his power to defend America, her allies, and her interests—however much he may distort the dangers and manipulate the understandable fears of Americans.

Moreover, in the matter of both executive orders singling out the list of majority-Muslim countries, I believe that the president was probably on solid constitutional ground in issu­ing the orders. Under the Constitution, the president is granted broad authority to enforce borders and protect citizens inside those borders. But there is a world of difference between believ­ing that you can do something and that you should do some­thing. I believe that the president’s decision to bar entry from certain majority-Muslim countries is profoundly misguided—both because it runs counter to American values and because it makes no strategic sense. In fact, it could end up producing the opposite strategic effect than is intended—making us less, not more, secure.

That’s where the wisdom of deliberation comes in. It is that deliberation that is one of the principal features of American conservatism as a coherent governing philosophy. If conserva­tives do not believe in the calm, sober use and restraint of gov­ernment power, then we believe in nothing. Especially when it is exercised in haste, arbitrarily, and without deliberation or care. There is the trust your gut, shoot from the hip approach to po­litical decision making, and then there is the fly off the handle approach. As evidenced by the 2016 presidential campaign, fly­ing off the handle is a big, big hit right now—at least in terms of its entertainment value and ratings.

As a governing philoso­phy, the instability of flying off the handle is a disaster for the United States and is profoundly unconservative. The same goes for our state-of-the-art presidential bellicosity—which seems to be quite popular in “conservative” circles these days. That is the antithesis of conservatism, too. And it is also very often the antithesis of truth.

The White House’s list of forbidden countries was mysteri­ously selective, barring people from these shores without re­gard to whether their countries of origin actually have a history of exporting terrorism to America—in fact, the list left out the countries that have produced the most terrorism we’ve seen per­petrated here. So if countering terrorism is the goal, the policy doesn’t make sense on its face. But when the president’s execu­tive order came under legal challenge and public scrutiny, the White House responded by saying that the seven countries cov­ered by the president’s order had in fact been designated as “countries of concern” by President Obama and intimated that in designating those countries in his orders, President Trump was somehow merely continuing the counterterrorism work of his predecessor. Well, I knew better.

After the ISIS attack on Paris in November 2015, in which 130 people were killed and hundreds more were wounded, there was intense pressure brought to bear here in the United States to stop the flow of refugees, from Syria in particular and from Iraq as well. Now, we have not taken in many Syrian refugees to date—most of our smaller allies have taken in many more—and some of us on Capitol Hill thought that it was a mistake and unfair to blame refugees and exaggerate the risk they pose, as they are already subjected to a rigorous vetting process that can take years to complete.

Of greater immediate concern were Frenchmen and Belgians, for instance, who travel to Syria or Iraq to fight with ISIS, return to their home country, and then—because of our visa-waiver agreement with most of Europe and a few other countries—are free to board a flight to come to the United States, with no visa and no questions asked.

I love the visa-waiver arrangement. Most of us do, as it is reciprocal and allows for easy, visa-free travel to and from 38 countries for American citizens. But there were very real vulnerabilities when it came to possible European jihadis seeking to travel to the United States under the radar, exploiting this practice of practical convenience to potentially do harm. (This, thankfully, had not to that point been a problem.) So in the spring of 2016, not long after the Paris attacks, Democratic Senator Dianne Feinstein and I introduced an amendment prohibiting anyone from the visa-waiver countries who had recently traveled to Iraq or Syria from taking advantage of the visa-waiver program. In other words, they would first need to be interviewed, in order to discover the circumstances of their travel. Simple—or so I thought.

Suddenly, what started as a focused effort to close that one loophole morphed into a broader waiver exclusion policy. In the House of Representatives, the House Judiciary Committee took up the issue, and countries began to be rather arbitrarily added to the list. Now, instead of just the spots of current conflict, countries from which we could document a risk, other countries were added—Libya, Somalia, Sudan, Yemen. Sudan, which is a source and sponsor of terrorism, doesn’t enjoy the visa-waiver program under any circumstances anyway, so adding it to the list made no sense. There seemed to be some other agenda at work. For good measure, the House negotiators added Iran, of course, and this addition has proven to have a very negative and unjustified effect on many Iranian American friends in Arizona and around the country who have had their travel curbed for no apparent reason.

It is difficult to find successful tech firms in Silicon Valley that don’t have Iranian Americans in positions of leadership. Groups like Persian Tech Entrepreneurs and others are a testament to their growing talent and influence. But it’s not just Silicon Valley—by any metric, Iranians in America, many of them having fled Khomeini’s revolution, have become successful, and have become American. Those of Iranian descent born in Europe or the United States have often had dual citizenship automatically conferred on them by Tehran, often without their knowledge. When you impose a travel ban involving Iran, you’re going to affect a lot of people traveling to do business and to visit family.

As for the visa-waiver issue, it’s worth keeping in mind that when we stop allowing Europeans in automatically, European visa-waiver countries might reciprocate, which burdens Americans a lot more than it does the Europeans, because all of a sudden there are 38 countries that Americans have to get a visa to travel to. The common-sense fix that Senator Feinstein and I had hoped to achieve was, in the face of the broader House list, becoming a mess. But the Obama administration was so fearful that the Congress was on the path to doing away with the refugee program altogether that it swallowed the expanded list. Senators Durbin, Heller, Feinstein, and I pressed the White House not to concede to the expanded list—that doing so would create all sorts of unintended and unnecessary problems—and we also lobbied House Judiciary Committee chairman Bob Goodlatte and Speaker of the House Paul Ryan to limit our visa-waiver amendment to just Syria and Iraq, but by then the cake was baked.

And that’s how we got that list.

Under questions and pressure, in the atmosphere of a new administration, all of a sudden the list of forbidden countries became “Obama’s list,” with all sorts of rigor being ascribed to its formulation, as if it had been carried down the mountain on stone tablets rather than being haphazardly assembled as it was bounced around House committees.

I was puzzled when the new president’s senior advisor Stephen Miller—who was also credited with a principal role in the development of the travel ban—appeared on national television and announced that “our opponents, the media, and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.” Will not be questioned? Really?

Presidential power should be questioned, continually. That’s what our system of government, defined by the separation of powers, is all about. It shouldn’t matter whether the president belongs to my party or to another one.

Besides, I’m from the west. Questioning power is what we do.

This article has been adapted from Jeff Flake's recently released book, Conscience of a Conservative: A Rejection of Destructive Politics and a Return to Principle.