Notice & Comment

Colorblind Nationalism, by Ming Hsu Chen

White supremacy has morphed into white nationalism during the Trump era. Charlottesville’s Unite the Right rally and Black Lives Matter protests demonstrate this vividly. In 2017, the public purpose of the Unite the Right rally was to defend confederate statues; similar symbols have come under contestation in the military, state governments and athletics over the last few weeks. Overlooked in this confederate reckoning is why marchers routinely chant anti-immigrant slogans such as “build the wall” in addition to anti-black and anti-Semitic slogans such as “White lives matter” and the Nazi throwback “blood and soil.” The shift toward white nationalist rhetoric dovetails with colorblind ideologies that undermine anti-racist efforts and justify anti-immigrant sentiment as race-neutral.

How has xenophobia converged with white nationalism and colorblindness? Exclusionary immigration policies are cloaked in the neutral language of national protection, public health, and economic justice rather than being seen for what they really are: racism toward immigrants. The masquerade affords the government broad power and more deferential review than Constitutional commands of Equal Protection and administrative principles of reasonableness would ordinarily require. Whereas racism is wrong, nationalism is not. Discrimination is wrong, but protecting our borders from economic and public health threats is not. Whereas arbitrary and capricious decisions and pretextual justification are wrong, enforcement discretion is not. Both immigrants and racial minorities suffer from this ascendant ideology. However, laws perpetuating anti-immigrant sentiment stand because of the false assertion that regulating immigration fundamentally differs from regulating race: because it impacts national interests, it is colorblind.

The legal logic behind colorblind nationalism can be seen in the Supreme Court’s Trump v. Hawaii decision upholding President Trump’s travel ban. The decision granted broad executive power to categorically exclude Muslim immigrants for protection of the national interest, notwithstanding clear evidence of racial animus and discriminatory intent. The Court skirted around this issue by focusing instead on the authority of the presidency and separation of powers concerns, by relying heavily on precedents of racially-discriminatory travel bans issued by prior administrations, and by applying only rational basis review for the order. Even though the Court conceded that the policy may be overbroad and that in reality it does little to serve national security interests, the Court ultimately held that “[i]t cannot be said that it is impossible to discern a relationship [between the order and] legitimate state interests.” According to the majority, the order cleared the low rational-basis bar.

Justice Sonia Sotomayor disagreed. In her dissent to Trump v. Hawaii, she advocated for a heightened standard of review while emphatically asserting that, even under the rational basis standard, the travel ban would fail in light of the abundant record of religious animus. She writes, “the majority here completely sets aside the President’s charged statements about Muslims as irrelevant.” Justice Sotomayor points out the parallels between using executive power for Japanese internment and banning Muslim immigrant entry. Justice Roberts’s majority opinion disavows her comparison of Trump v. Hawaii to the shameful Korematsu decision that upheld the exclusion of Japanese citizens during World War II because Trump’s travel ban is “a facially neutral policy denying certain foreign nationals the privilege of admission.” In other words, race-based laws designed to protect the nation are invalid; however, anti-immigrant laws premised on colorblind purposes are comparatively valid. (The Supreme Court’s rejection of the citizenship question on the census, which would have resulted in an undercounting of immigrants, as a pretext that violates arbitrary and capricious review is a refreshing exception to the norm.)

Recently, President Trump has invoked the coronavirus as the latest national threat, using it to justify a raft of immigration restrictions. On January 31, 2020, the President issued a Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus blocking all immigrants who were physically present in China in the two weeks preceding the order from attempting to enter the United States. He cites “the importance of protecting persons within the United States from the threat of this harmful communicable disease.” Many other countries have implemented bans against travel from China, and other countries were eventually banned from the United States, lending these policies the sheen of a colorblind and necessary response to contagion. A CDC policysimilarly transformed a border ban for Central American asylum seekers into a public health regulation.

Utilizing the pandemic as a tool to spread anti-immigrant sentiment, President Trump has further categorized the virus as a threat to the national economy. In one of his late-night tweets, he made a sweeping declaration that, in order to “protect the jobs of our GREAT American Citizens, [he would] be signing an Executive Order to temporarily suspend immigration into the United States!” A few days later, on April 22, he issued a  Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak that was subsequently extended to temporary workers. While the order does not ban all immigration, it does restrict thousands of immigrants from acquiring green cards and visas and disproportionately affects immigrants from Asia, Africa, Central America, and Eastern Europe. President Trump emphasizes that this is “a time when we need to prioritize Americans and the existing immigrant population” over newcomers. The Trump Administration has also enacted visa restrictions that exclude international students and researchers, especially from China, for reasons ranging from economic reasons to protection against espionage and abuse.

As usual, the president’s unscripted words tell us more than his executive orders and regulatory policies. For months he referred to the coronavirus as the “Chinese virus” and “kung-flu” in contradiction to the World Health Organization’s naming guidance that seeks to avoid stigmatization of individuals with Chinese ancestry. President Trump snarkily insisted that these names are not racist “[be]cause (sic) it comes from China.” Members of the House of Representatives introduced a resolution that blames China for the spread of the virus, shirking responsibility for the Trump Administration’s own mistakes in responding to the pandemic. Despite Congress and the President denying racism, it is no coincidence that discrimination toward Asian Americans have been on the rise during the pandemic.

While the rhetoric of national protection may be colorblind on its face, it is a mere tactic to avoid public scrutiny. Evidently, under the banner of nationalism, such policies are politically and legally acceptable. Racism may live on.

Ming Hsu Chen is an Associate Professor at the University of Colorado Law School, where she teaches administrative law and immigration law. She is author of Pursuing Citizenship in the Enforcement Era (Stanford University Press, August 2020). This is Part 1 of 2 in a series of essays about race and administrative law. She thanks Emma Carroll for research assistance. Follow her on Twitter here.