The Freakout Over Trump’s Executive Order on Jews Was Wrong
Trump’s draft order defining Judaism as a nationality simply adds clarity to an already widely agreed upon legal view
Early Tuesday evening, the New York Times Politics Twitter account tweeted out that “President Trump will sign an executive order defining Judaism as a nationality,” and Twitter immediately went into overdrive. Was Trump classifying Jews as un-American and promoting the dual-loyalty smear? Were Nazi deportations and Nuremberg Laws around the corner? No. The sky isn’t falling. The Trump executive order simply enshrines as policy decades of existing anti-discrimination laws meant to protect Jews.
The issue is this: a number of anti-discrimination laws are phrased as protecting people from discrimination based on “race or nationality” — but not religion. Do these laws reach discrimination against Jews?
The consensus has long been yes. In a 1987 Supreme Court decision, Justice Byron White, a JFK appointee, held that Jews were a “race or nationality” protected by the Civil Rights Act of 1866. The decision was unanimous, joined by liberal icons like Thurgood Marshall and William Brennan.
But it was unclear if the Supreme Court’s reasoning applied to the same “race or nationality” language in Title VI of the Civil Rights Act of 1964 protecting against discrimination in education. While congressmen in the 19th century thought of Jews as a race, that classification is offensive in modern times.
Nevertheless, the Obama administration Justice Department provided informal guidance that Title VI did apply to discrimination against Jews qua Jews (and Muslims and Sikhs), if the discrimination could be classified based on ethnic identity or national origin.
In recent years, there has been a bipartisan movement to provide legal protections to students and academics against the anti-Semitic BDS movement. Left-wing anti-Semitism has been a troubling trend on campus, with incidents such as a UCLA student government panel questioning whether a Jew could serve on its judicial board. The U.S. Senate has repeatedly taken up legislation to endorse the Obama administration view of Judaism-as-nationality for purposes of Title VI, most notably in the Anti-Semitism Awareness Act of 2016, passed by unanimous consent in the Senate, though it died in the House.
Twitter blue-checks did not cover themselves in glory in the first 24 hours after the Times tweet.
As the Times story (which was considerably less incendiary than the tweet) noted, Democratic Sen. Harry Reid and his Jewish chief of staff, David Krone, had pushed this issue hard. Even after Reid retired, Krone reached out to Jared Kushner, Trump’s son-in-law, to lobby the administration on the issue. Other Jews within the administration supported the policy change, and an executive order modeled after the 2016 Senate bill was developed. The Times story correctly expressed no concern about the “nationality” implications, restricting its news hook to ACLU concerns about possible infringements on speech opposing Israel. (Proponents deny that there are any free-speech implications.)
Jewish Insider released a draft of the executive order, and it is even more anodyne than the Senate bill, mirroring its language, but further limiting itself to preclude First-Amendment-protected activities.
Twitter blue-checks did not cover themselves in glory in the first 24 hours after the Times tweet. CNN’s Bianna Golodryga called the executive order “Soviet.” The Independent’s Andrew Feinberg called it “the same kind of shit that Nazis did.” The Good Place creator Mike Schur sneered that Trump was doing the bidding of bigots. Sen. Brian Schatz of Hawaii, apparently unaware of his own lack of opposition to identical language in 2016, took to Twitter to complain, “My nationality is American.”
Law professors and journalists and celebrities bemoaned the appeal to white supremacy. A few voices on the Left, such as Media Matters’s Matthew Gertz and the ADL’s Jonathan Greenblatt, tried to stem the tide with accurate information, but they were barely heard over the noise. The refusal to apply Occam’s razor was astonishing. What was more likely: That someone without legal training was misunderstanding an executive order they hadn’t seen, or that a bipartisan coalition of Jewish policymakers persuaded Jared Kushner to convince Trump to issue the preliminary groundwork for a 21st century version of the Nuremberg Laws in America? You can guess which tack got the most retweets and likes.
With real anti-Semitism on the march and on a day when gunmen targeted a Jersey City Kosher Supermarket, murdering four people (three of whom were Jewish), a chorus instead rose up against Jewish allies engaging in a largely symbolic legal exercise.
Trump critics should recognize how counterproductive such false accusations are. When cries of “Nazi” are so loosely issued and turn out to be 180 degrees from the truth, it trains readers to be skeptical of the wealth of legitimate criticisms of Trump. The president couldn’t have asked for a better example of “fake news” with which to tar his critics in the media.