Judge Rules Against 75-Country Visa Ban Citing Legal Violations
A Visa Ban Without Arms Is Merely a Gesture
When a ruler flings a sweeping decree against the law that sustains his own state, he does not prove his strength; he advertises his weakness.
This administration’s secretary of state orders consuls, in one stroke, to stop processing immigrant visas for nationals of seventy‑five countries. The stated fear is that such people will come only to “extract wealth” or “take welfare and public benefits.” Nearly forty percent of the world thus learns, by cable and rumor, that the door is barred to them in advance, whatever their individual merits. Then a federal judge declares the measure contrary to law and beyond the secretary’s authority, pointing to statutes that forbid discrimination by nationality in issuing visas. The government may appeal, but the effectual truth today is simple: a vast ban proclaimed with fanfare, and then halted by the ordinary operation of the courts.
I have written that one must look not at how men ought to act, but at how they do act, or else one learns the road to ruin rather than preservation. Here the effectual truth is not about charity to foreigners, nor about sermons on inclusion, but about power. A leader fears fiscal burdens, social strain, the anger of citizens who think newcomers will eat their bread. He seeks to show that he protects the public chest. This is a normal appetite of princes and ministers. The question is not whether they will act on such fears, but whether they do so with prudence and with respect for the very orders that keep them in office.
The rulers of this republic already possess an ancient instrument for excluding those who might become a public charge. I am told these “public charge” rules date back more than a century, rooted in the harsh thinking of another age. They permit case‑by‑case assessment. Instead of sharpening that weapon, the secretary chooses a blunter one: a categorical ban on entire nations, including persons whom consuls themselves judge likely to be self‑sufficient. In The Prince, comparing fortune to a raging river, I observed that men show their virtù by building dykes in good weather (Marriott’s translation). Here, rather than strengthen the dykes, they try to divert the whole river with a shovel of sand.
The law of this republic, as interpreted by its own institutions, forbids discrimination in immigrant visas on the basis of nationality. That is a dyke. You may like it or not, but while it stands, it directs the flow of power. A minister who issues an order that collides head‑on with such a barrier without first altering the law acts not boldly, but rashly. In the Discourses I argued, with Ninian Hill Thomson as my translator, that founders must assume all men bad and frame orders accordingly; here, the founders assumed future officials would be tempted by arbitrary exclusions, and therefore bound them by statute and by judges. To pretend those bonds do not exist is to forget that in a republic, arms are held in many hands.
Every great reform needs arms of its own. Arms, in a modern republic, mean not only policemen at airports but a legal foundation, a coalition in the legislature, and a measure of consent from the people who will judge in elections and in the streets. This ban possessed only the appearance of arms: consular cables and the might of the executive seal. It lacked the sturdier weapons of a revised statute and a prepared legal argument consistent with long‑standing rules. Thus a single district judge can halt it. This is what happens when a prince relies on auxiliaries. He borrows strength from the courts when they defer to him, then discovers they belong to another master when they resist.
Nor is the damage limited to defeat in court. Appearances are a hard currency of power. A policy that indiscriminately freezes families from dozens of countries—Africa, Latin America, the Middle East, Eastern Europe—tells the world that judgment is passed not on persons but on passports. The government’s own lawyers now must argue that this is lawful and reasonable, while its opponents call it a fiction based on prejudice about who will use public resources. Even if the administration were to prevail on appeal, the republic’s reputation for ruling by law rather than caprice is already wounded. When you claim necessity and then lose on legality, you teach citizens that necessity was only pretext.
The worst part is that this is a middle course, the thing I most despise. If the danger from newcomers abusing public benefits is truly existential, then one must seek new laws openly, build a broad alliance, and bear the controversy that follows—this is the princely route within a republic. If the danger is not so grave, one should refine the existing, lawful tools and accept the limits that free institutions impose. Instead we see a gesture vast in scope and empty in preparation: it provokes alarm abroad, distress at home, and resistance in court, while changing nothing in the end. Whoever governs a republic must learn that in matters of exclusion, half‑measures earn you the hatred of many and the benefit of none.
From the works cited
- The Prince — Virtù versus fortuna — the raging-river figure: preparation in fair weather is the whole difference between the drowned and the dry.
- The Prince — Arms of one's own versus mercenaries and auxiliaries: power borrowed is power owed, and it will be collected at the worst moment.
- Discourses on Livy — Founding and radical reform must assume men bad and design accordingly; only a single lawgiver can found, but only the many can maintain.