The Promise and Peril of Trump’s Executive Order on Anti-Semitism

There are legitimate concerns about the suppression of protected speech.

On a day when two shooters appear to target a kosher market in a deadly killing spree, the internet erupted in outrage because ... Donald Trump said he would sign an executive order extending broader federal protections against anti-Semitism. I’ve come to praise the idea but critique the execution. Also Tuesday, a federal court in Texas issued an injunction against the diversion of federal funds to build Trump’s border wall. I’m going to explain why the judge was right, and the Trump administration’s action was unlawful and defied the plain language of the relevant statutes. In other words, there’s a little something here for everyone. Today’s French Press:

  1. Trump’s executive order on anti-Semitism is a good idea, but it’s tainted with a significant flaw.

  1. Trump’s emergency declaration on the wall did not unlock unlimited executive power.

The Trump administration takes a promising and perilous step to combat anti-Semitism on campus.

Yesterday, in a dreadful scene in Jersey City, two suspects shot and killed a police officer in a cemetery, then slowly and deliberately drove to a kosher market and then entered the market, guns blazing. They were eventually slain in an all-out gun fight with police. When the smoke cleared, a total of six people were dead—the police officer at the cemetery, three innocent victims in the kosher market, and the two assailants. Wednesday morning we learned that one of the assailants was a “one-time follower of the Black Hebrew Israelite movement.” He also “published anti-Semitic and anti-police posts online and investigators believe the attack was motivated by those sentiments.”

If this reporting holds up, the Jersey City attack now joins a long line of recent, horrifying anti-Semitic attacks—coming from both the left and the right. From the Tree of Life Synagogue shooting in Pittsburgh, to the Poway Synagogue shooting in California, to the Jersey City kosher market shootout, the death toll is growing. In addition, there’s a terrifying rise in anti-Semitic beatings, attacks, and other incidents this year in New York City. 

Against that backdrop, it was extremely odd to see a wave of online outrage after Donald Trump signaled Tuesday that he intended to sign an executive order broadening protections against anti-Semitism in America’s federally funded colleges and schools. Much of the hubbub came in response to a New York Times report that said the order is designed to “interpret Judaism as a race or nationality, not just a religion,” thus bringing anti-Semitism within the scope of Title VI of the Federal Civil Rights Act of 1964. 

But that’s not exactly right. A draft of the order states that “[d]iscrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual's race, color, or national origin.” There is no blanket reinterpretation of Judaism as a nationality. Instead, it states a rather conventional truism—that when discrimination is based on “race, color, and national origin, Title VI applies. Thus, “It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.”

Here is the text of Title VI: 

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Note that “religion” is not a protected category under the law. That’s why, for example, Christian student groups don’t enjoy Title VI protection when universities try to exclude them from campus. So the Trump administration’s action is lawless, right? Judaism is a religion, religion isn’t a protected category, and so isn’t he rewriting the statute? 

To get a sense of the opposition to the Trump executive order, you might want to dive into the replies to this tweet, from The Nation’s Jeet Heer:

But the lines here are not so clean. For example, while I’ve met many atheist Jews in my life, I can’t say that I’ve met an atheist Christian. There is absolutely an ethnic component to Judaism that doesn’t exist in orthodox conceptions of Christianity. And in fact the Obama administration issued guidance stating that “discrimination against Jews, Muslims, Sikhs, and members of other religious groups violates Title VI when that discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than its members’ religious practice.”

This is eminently sensible. And so is the Supreme Court’s unanimous ruling in Shaare Tefila Congregation v. Cobb. In Shaare Tefila, the court considered whether 42 U.S.C. Section 1982, which prohibits “both official and private racially discriminatory interference with property rights” protected a Jewish congregation from anti-Semitic vandalism. The court held that it did:

[T]he question before us is not whether Jews are considered to be a separate race by today's standards, but whether, at the time 1982 was adopted, Jews constituted a group of people that Congress intended to protect. It is evident from the legislative history of the section reviewed in Saint Francis College, a review that we need not repeat here, that Jews and Arabs were among the peoples then considered . . . to be distinct races and hence within the protection of the statute.

It's true that Title VI and Section 1982 are separate statutes, but the Obama administration approach (which is consistent with Shaare Tefila) seems quite sound. Congress intended to protect distinct groups from targeting on the basis of their ancestry, and formally extending Title VI protections to a group that is consistently targeted on the basis of its ancestry is an appropriate Trump administration response to a growing national problem.

Of course the devil is often in the details, and that’s where we see the peril in Trump’s order. Civil liberties groups have raised alarms that the executive order could suppress constitutionally protected speech. They’re right to be concerned. The draft order adopts a “non-legally binding working definition of anti-Semitism” from the International Holocaust Remembrance Alliance describing anti-Semitism in part as “a certain perception of Jews, which may be expressed as hatred toward Jews.” The IHRA provides a number of common examples of anti-Semitic expression, but it also explicitly states that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.”

There is, however, no First Amendment carve-out for anti-Semitic speech or any form of “hate speech.” Vile, hateful, and racist words are constitutionally-protected forms of expression. As the Foundation for Individual Rights in Education states, “[T]he definition [of anti-Semitism] and examples reach core political speech protected by the First Amendment.” Moreover, “directing federal agencies to rely on this framework in enforcing Title VI would effectively order nearly every campus in the country to censor its students and faculty on the basis of viewpoint.’”  

The draft order tries to soften the constitutional impact, however, by stating that relevant federal agencies “shall not diminish or infringe upon any right protected under Federal law or under the First Amendment,” but the order would be far better if it did not refer to a list of anti-Semitic ideas—even if the ideas in that list are vile. Title VI is aimed at conduct, not speech. 

The bottom line is relatively simple—since Jews are being targeted on the basis of their “shared ancestry,” they should receive protection under Title VI, but extending that protection does not repeal a single syllable of the First Amendment. Title VI can and should exist in harmony with free speech, and the administration should revise its draft order to remove the possibility that universities will use it to impose new speech codes on students and faculty. 

A Texas federal court rightly rules against Trump’s border wall.

Yesterday, a federal district court judge in El Paso, Texas, issued an injunction barring the Trump administration from diverting “military construction” funds beyond $1.375 billion granted in the 2019 Consolidated Appropriation Act for border wall construction. This is an important decision that helps reassert congressional authority over the power of the purse. 

The background is relatively simple. When Trump issued a proclamation declaring an emergency on the southern border, he listed various federal funds that he was reallocating to extend and repair barriers along the southern border. The largest pot of money ($3.6 billion) was to come from “military construction” appropriations under 10 U.S.C. Section 2808.

Yet as soon as I saw that statutory reference, I knew that Trump had a legal problem on his hands. Section 2808 does not grant a president unlimited discretion when he declares a national emergency. I explained the problem in detail in a National Review piece in February, but here’s the short version.

The statute states that when the president declares an emergency “that requires use of the armed forces,” then the secretary of defense “may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects” that are “necessary to support such use of the armed forces.”

Even if you grant the (highly debatable) premise that the border crisis required the use of the armed forces, the border wall doesn’t meet the statutory definition of “military construction.” 10 U.S.C. Section 2801 defines “military construction” as “any construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or construction of a defense access road.” As I explained in February:

The intent is clear — to grant the military the power to build out military installations, and a “military installation” is a “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or ... without regard to the duration of operational control.” Each of the precisely described forms of installation represents facilities that support the troops. Under basic rules of statutory construction, the “other activity” must also fulfill that same purpose. As the Supreme Court held in Circuit City Stores v. Adams, when “general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”

A border wall, by contrast, is a civilian structure to be manned by civilian authorities to perform a civilian mission. The troops would not be creating a military fortification for military use.

The court, however, took an even more direct approach to the issue, bluntly holding that since Congress explicitly and specifically appropriated $1.375 billion for border-wall funding, it did not grant permission to re-allocate any other appropriated funds for that purpose. The specific funding allocation trumped the ability of the executive to move funds appropriated for more general purposes.

Though the case is still in its early stages—the administration will no doubt appeal—the ruling is sound. It stretches credulity to argue that when Congress allocated a defined sum of money for the border wall that it also intended another, larger pot of money to be made available at the president’s discretion. And even if a court of appeals holds that the relevant statutes grant the president the discretion to reallocate those funds after an emergency declaration, their limitation to a defined category of “military construction” should preclude their use in building a civilian structure. If Trump wants to build a wall, Congress is going to have to explicitly appropriate the money. 

One last thing ... 

Two things are true at once. DC is better than Marvel, and the '80s were the most glorious decade. Combine these truths, and the Wonder Woman sequel just might be the great movie of 2020:

Photograph of crews working the scene in the aftermath of a mass shooting at a kosher market in Jersey City, New Jersey by Rick Loomis/Getty Images.