Why I Signed onto an Amicus Brief Suing the President of the United States

Last week I accepted an invitation to join with eight others as signatories in an interfaith amicus brief in support of two Iraqi refugee petitioners. They charge that President Donald Trump’s Executive Order Travel Ban violates the equal protection component of the Due Process clause of the US Constitution because it discriminates against refugees based on their religion.

Darweesh et al.v. Trump et. Al was filed in the Eastern District of New York on Thursday, February 16 by the legal firm of Covington & Burling LLP, Washington, DC. The firm is representing the two plaintiffs pro bono.

Here is the unconstitutional passage of the Travel Ban Executive Order:

“…the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest – including when the person is a religious minority in his country of nationality facing religious persecution…” (“Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States” – January 27, 2017 – Section 5e)

Trump’s specific designation of seven Middle East nations to which this Travel Ban applies (Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen) are majority-Muslim countries. The Executive Order gives preference to minority religious communities in those countries (i.e. Christians). That is a clear violation of the equal protection component of the Constitution’s Due Process clause because Muslims as a religious community are discriminated against.

The two plaintiffs are both Iraqi. One served as a translator for the American military in Iraq and feared for his life should he remain in his native country. He was promised political asylum by his American military handlers, but when he arrived at JFK he was refused entry because of Trump’s Travel Ban.

The other plaintiff is an Iraqi refugee who came to America in order to join his family. They had been thoroughly vetted and were cleared and granted visas. He too was refused entry and held at JFK until the Ninth Circuit Court stayed the ban. Both plaintiffs are now safely in the United States.

We Jews, if nothing else, know the heart of the stranger. The Torah instructs us frequently to remember that we were slaves in the land of Egypt. Tradition instructs us to welcome the stranger at all times with dignity, courtesy, and active support.

In times of crisis such as these in which millions of refugees are fleeing violence in their native countries, the exceptionalism of America combined with the ethical and moral impulse in Judaism, Christianity, and Islam call upon us to do everything possible to provide safe haven for the “tempest-tost.” (see Emma Lazarus, “The Great Colossus” inscribed on the Statue of Liberty)

Altruism is the noblest of moral motivations, but enlightened self-interest is also efficacious in our doing what is just and compassionate. The German Lutheran Pastor Martin Niemöller  reminds us of real-world consequences if we don’t act on behalf of others:

“First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.”

The interfaith amicus brief signatories include:

• Bana Alabed, a seven-year-old Syrian refugee from Aleppo who wrote to Donald Trump not to forget the children of Syria. Syrian President Assad called Bana’s posts “terrorist propaganda”
• The Auburn Seminary, New York, NY
• Congregation B’nai Jeshurun, New York, NY
• The Muslim Public Affairs Council
• Rabbi James Ponet, Retired Director of The Joseph Slifka Center for Jewish Life, Yale University, New Haven, CT
• Rabbi John Rosove, Senior Rabbi, Temple Israel of Hollywood, Los Angeles, CA
• Rabbi Keith Stern, Senior Rabbi, Temple Beth Avodah, Newton Center, MA
• The Union Theological Seminary, New York, NY
• Suhaib Webb, the imam of the Islamic Society of Boston Cultural Center

I will report back as this case moves through the courts.

Note: Though so many in my congregation have expressed their moral outrage at this Travel Ban, I am a signatory as an individual and do not claim to represent my synagogue or any other organization.