According to Yiddish humor, chutzpah is when a son kills his parents and then throws himself on the mercy of the court because he's an orphan. A little-noted detail of the recent court battles surrounding President Trump’s travel ban offers an audacious example.
The U.S. Fourth Circuit recently upheld a lower court’s injunction against enforcement of President Trump’s executive order restricting entry into the United States of nationals from six Muslim-majority countries. The case, destined to be known to future generations of law students as International Refugee Assistance Project v. Trump, now heads to the Supreme Court. The second named plaintiff in the suit is HIAS, Inc., known previously as the Hebrew Immigrant Aid Society. HIAS is the world’s oldest resettlement agency, with roots in Manhattan’s Lower East Side dating back to the late nineteenth century, when the organization assisted Jews fleeing Czarist pogroms in Russia. More recently, HIAS resettled some 410,000 Soviet and former Soviet Jews in the United States under a 1970s-era U.S. refugee policy implemented specifically to benefit that particular group.
HIAS’s business is resettlement, without distinction of religion or national origin. The Trump ban, if implemented, would threaten that business, at least as the organization sees it. So it found itself not only in opposition to the Trump order but also arguing that the 1970s resettlement policy it had helped create amounted to unconstitutional favoritism toward Jews—in violation of the Establishment Clause. That was then, this is now.
Some background is in order. Fifty years ago this month, Israel’s victory in the Six Day War provided an enormous boost of pride and self-confidence for the worldwide Jewish diaspora. In the Soviet Union, this newfound pride found expression in a movement among some Jews to emigrate to Israel. Beginning in 1968, the Soviets had permitted a small number of Jews to leave for Israel, but the authorities quickly clamped down, denying emigration applications, imposing burdens and restrictions, fomenting a campaign of official harassment and anti-Semitism, and levying heavy taxes on those permitted to leave, ostensibly to reimburse the Soviet state for the investment it had made in the emigrants’ education.
Among American Jews, also energized by the 1967 war and ready to flex their collective political muscle, these developments spurred a vigorous global campaign to free Soviet Jewry. The campaign found its political champion in Senator Henry “Scoop” Jackson, a Democrat with presidential ambitions, an anti-Soviet Cold Warrior so fierce that his name became synonymous with a now-defunct brand of nationalist Democratic foreign policy. Against the objections of President Richard Nixon and Secretary of State Henry Kissinger, who were negotiating a comprehensive trade agreement with the Soviets and didn’t want human rights issues undermining their détente policy, Jackson, together with fellow Democrat Charles Vanik of Ohio, authored legislation that came to be known as the Jackson-Vanik Amendment to the Trade Act of 1974. Signed into law by President Gerald Ford in 1975, the legislation required nonmarket-economy countries to meet freedom-of-emigration criteria in order to receive preferential trade status with the United States. For the Soviet Union, hungry for Midwestern grain, this trade status was a valuable prize.
Though the law was written in ethnically and religiously neutral terms, the policy it put into effect was designed to favor Soviet Jews. Certainly the Soviets understood Jackson-Vanik to be specifically aimed at their Jewish population. While small numbers of ethnic Germans, Armenians, evangelical Christians, and a few other groups also benefited from Jackson-Vanik, on sheer numbers, Soviet Jews were the main beneficiaries of the right to emigrate—a privilege not extended to most ordinary non-Jewish Soviet citizens.
Not only did the U.S. government exert pressure on the Soviet Union in the form of trade conditions to permit Jewish emigration, but U.S. immigration policy through the early 1990s was also strongly favorable to Soviet Jews. Though Israel stood ready to receive them in unlimited numbers, Soviet Jews were almost always granted refugee status by the United States—a status predicated on “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress promoted special status for Soviet Jews by allocating funds for their resettlement. In 1989, Congress passed the Lautenberg Amendment, which granted certain designated groups presumptive refugee status. These groups included certain Indochinese, evangelical Christians, members of the Ukrainian Catholic and Orthodox Churches, and, most important, Soviet Jews.
HIAS’s involvement in the push for a new Jewish exodus was central. In December 1966, HIAS organized a campaign to encourage American Jews to invite their Soviet relatives to join them in the U.S. Throughout the 1970s, HIAS, together with representatives of the Jewish Agency for Israel, greeted Soviet Jews in Vienna—their first stop after leaving the U.S.S.R. Those bound for Israel were handled by the Jewish Agency. HIAS managed the rest, most of whom ended up in the United States after several months of processing in Rome by the Immigration and Naturalization Service. In 1974, HIAS negotiated a U.S. taxpayer-funded grant from the State Department for each Soviet Jew coming to the U.S.—now standard State Department practice for refugee resettlement agencies it contracts with. These funds were used to offset the costs of resettlement to Jewish communities in the U.S. that were sponsoring Soviet immigrants. HIAS continued to lobby for refugee status for Soviet Jews seeking entry to the United States well into the Gorbachev era.
Which bring us back to International Refugee Assistance Project v. Trump. The central constitutional question presented by the case is, in the Court’s portentous words, whether “the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.” The main substantive argument made by HIAS and the other plaintiffs is that Trump’s executive order violates the fundamental guarantee of the Establishment Clause of government neutrality in matters of religion. Citing, among others, a 1982 case called Larson v. Valente, the plaintiffs argue that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” This principle of neutrality may be violated even by a law that is on its face neutral but whose primary purpose is religious, not secular. The executive order’s religiously neutral language, the plaintiffs argue, falls into this category: its thin veneer of neutrality conceals the administration’s true purpose of anti-Muslim bigotry, as revealed in numerous public statements made by candidate and President Trump. The Fourth Circuit agreed, describing the executive order as one “that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
So to recap, from the mid-1970s through the end of the century, HIAS was deeply complicit in and benefited from a U.S. government refugee policy that it now argues represented an unconstitutional establishment of Judaism as a favored religion. Even by the standards of chutzpah, that’s quite a pivot.
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