The New Nativist Hysteria Is Illegitimate, Divisive and Dangerous

The numbers could still rise, but as of the end of last week, governors in some 30 states had announced that they would close their borders to refugees from Syria.

The House of Representatives also roared into action, approving the American Security Against Foreign Enemies (SAFE) Act of 2015 by a resounding margin of 289-137, in an effort to “suspend” the admission of new migrants from either Syria or Iraq.

After securing passage of the SAFE Act, the House Republican leadership vowed to introduce additional anti-immigrant measures. One bill—the Protection of Children Act—would expedite the deportation of unaccompanied alien minors. Another—the Asylum Reform and Border Protection Act—would restrict the grounds available for aliens inside the U.S. to claim political asylum.

At the same time, out on the hustings, GOP campaign rhetoric is soaring to new heights of xenophobia. Not content with his bellicose promise to build a wall along our nation’s southern border, Donald Trump told NBC News on Thursday that if elected he would compile a national registry of Muslim-Americans and that he would consider issuing them special IDs denoting their religion. Following suit, in a speech delivered in Alabama, Ben Carson compared some Syrian refugees with “rabid dogs.”

Nativist hysteria and scapegoating are nothing unusual in our history, but the current iteration is especially malignant because it has gone mainstream so rapidly—even 47 Democrats voted in favor of the SAFE Act. And while the malignancy was certainly in place before the barbaric Islamic State attacks of Nov. 13 in Paris, the attacks have given it a veneer of legitimacy that would have been unthinkable only a few weeks earlier.

The new nativism, of course, is anything but legitimate. Like its cousins of bygone eras that targeted the Irish, the Chinese, Jews and many others, it is steeped in ignorance and fear, stirred up by political demagogues and opportunists and stoked by media outlets (newspapers in yesteryear, cable TV today) more interested in financial bottom lines than honest reporting.

The new nativism is also, in many respects, flat-out illegal. And where it’s not flatly illegal, it’s flatly irrational and offers nothing to protect us from international terrorism.

Consider, for starters, the call for the creation of a national Muslim database and the issuance of Muslim IDs. Notwithstanding the infamous 1944 case of Korematsu v. United States, in which the Supreme Court shamelessly upheld the wartime internment of Japanese-Americans in an area stretching from the state of Washington to southern Arizona, the database and ID proposals would never pass constitutional muster today. They would plainly violate the First, Fourth and Fifth amendments on religious liberty, privacy and equal-protection grounds.

And then there’s the threat to close state borders. Since at least 1868, the Supreme Court has recognized that the freedom to travel from state to state is a fundamental constitutional right (Crandall v. Nevada). Once they are legally resettled in the U.S., refugees cannot be barred from crossing state lines. Nor should they be.

According to a New York Times study, the U.S. has taken in 1,854 Syrian refugees since 2012. Going back to 2011, when the Syrian civil war started, the tally stands at just under 2,200.

Whatever the exact figure and despite the histrionics of many governors, Syrian refugees already here have been relocated peacefully and without reported incidents in 35 states scattered across every region of the country. They are, the Times reports, “among the most vulnerable people” caught up in the civil war that has ravaged their homeland: “single mothers and their children; religious minorities; victims of violence or torture.” Only 2 percent are single men of combat age.

Just as they can’t shut down their borders, state governors cannot determine who gets to come to this country in the first place. The Supreme Court has held repeatedly—most recently just three years ago in Arizona v. United States—that the authority to control immigration is vested exclusively in the federal government. Governors don’t have a say.Congress, however, does have a say, and in fact a predominant one, in enacting and changing immigration and refugee laws. That’s what makes the SAFE Act so dangerous.

As legal commentator Ian Millhiser, the editor of ThinkProgress Justice, noted in a widely cited column published before the House vote on the SAFE Act, the president and the executive branch administer refugee policy. Under current law—specifically, the Refugee Act of 1980—the president has the discretion to admit refugees into the United States who face “persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

The president also sets the nation’s annual refugee ceiling after “appropriate consultation” with Congress. In fiscal 2015, the ceiling was calibrated at 70,000. In September, President Obama raised the 2016 fiscal year quota to 85,000, largely to facilitate the entry of an additional 10,000 displaced Syrians.

Contrary to what you may have heard from Trump and cable news, the refugee-vetting process is long, painstaking and laborious, taking on average two years to complete.

The process usually begins with registration and screening by the United Nations High Commission for Refugees (UNHCR). The screening involves interviews, home-country reference inquiries and biometric exams such as iris scans. Military combatants are rejected. The process takes four to 10 months, and according to PolitiFact, the UNHCR refers around 1 percent of applicants for overseas resettlement.

Once prospective refugees are referred to the U.S., they are subjected to additional interviews and cross-checks lasting another 18 to 24 months, conducted by a variety of federal agencies, including the State Department, the Department of Homeland Security, the National Counterterrorism Center and the FBI. After all these steps, Syrian refugees must clear yet another layer of investigation designed especially for them called the Syrian Enhanced Review process before they can set foot in the U.S.

Obama administration officials maintain that the current vetting system subjects potential refugees to “the most rigorous screening of any traveler[s]” to the country.

The SAFE Act would bring the system to a grinding halt by requiring the directors of the FBI, the director of national intelligence and the secretary of homeland security to personally certify each and every refugee approval. Even FBI chief James Comey, who has questioned the current framework’s efficiency, has expressed concerns that the requirements would make it impossible to process any refugees into the country.

To overcome a presidential veto should the SAFE Act make it through the Senate, House GOP leaders have threatened to attach the legislation to the omnibus spending bill Obama must sign in December to avoid a partial government shutdown. The stakes thus could not be higher.

The fear and anxiety many Americans harbor in the aftermath of the Paris attacks are entirely understandable. No one wants to be shot or blown to bits while sipping coffee or attending a rock concert.

But the nativist outburst on Capitol Hill and across the heartland won’t make us any safer. In fact, it plays directly into the hands of terrorist organizations like Islamic State.

Writing in a recent online issue of the The New York Review of Books’ NYR Daily, Middle East analysts Scott Atran and Nafees Hamid explain that Islamic State wants to sow chaos and division in the West. Its recruitment drives thrive on the isolation of Muslim communities and the disaffection of the young in urban centers like Paris and Antwerp. The Nov. 13 attacks in Paris were staged by homegrown jihadis.

With the disastrous invasion of Iraq that took the lives of an estimated 165,000 civilians, the U.S. helped to unleash the Islamic State Frankenstein’s monster. Now, the creature has us in its crosshairs.

Bringing down the monster won’t be easy or happen quickly, even in the best-case scenario. It won’t happen at all if we deny refuge to victims of Islamic State terror abroad and demonize Muslim-Americans at home. We’re better and smarter than that—or at least we should be.