Trump’s signing of an Executive Order banning immigration from seven Muslim-majority countries, where he has no business interests, and putting a hold on admitting refugees from Syria, sparked nationwide protest in the US, not least from sections of the tech industry.
Late last week, Trump’s Executive Order was suspended by Federal Judge James Robart, sparking a series of angry Tweets from the President of the United States, in which he derides Robart, appointed by President George W Bush, as a “so-called judge” and says that anything bad that happens now is at the door of judiciary.
Things got worse for the President on Sunday when the ninth US Circuit Court of Appeals in San Francisco rejected the government’s application for an emergency stay of Robart’s decision, effectively striking down the travel ban for now.
That said, it’s clear that the Trump administration will take further action to reinstate the ban in some form. With that in mind, the tech industry’s taken its own legal action, seeking permission from the U.S. Court of Appeals for the Ninth Circuit to file an amici curiae - friends-of-the-court - brief, in favor of maintaining the restraining order.
In total, 97 US tech companies have joined the action, including Facebook, Box, Workday, Salesforce, Google, Microsoft, Dropbox and Apple. Notable absentees from the list of signatories include IBM, Hewlett Packard Enterprise, Amazon and Oracle. (Amazon is already backing the legal challenge filed by Washington State Attorney General Bob Ferguson.)
According to the filing:
The Order effects a sudden shift in the rules governing entry into the United States, and is inflicting substantial harm on U.S. companies. It hinders the ability of American companies to attract great talent; increases costs imposed on business; makes it more difficult for American firms to compete in the international market- place; and gives global enterprises a new, significant incentive to build operations—and hire new employees—outside the United States.
It argues that immigration is hardwired into the American Dream:
Immigrants make many of the Nation’s greatest discoveries, and create some of the country’s most innovative and iconic companies. Immigrants are among our leading entrepreneurs, politicians, artists, and philanthropists. The experience and energy of people who come to our country to seek a better life for themselves and their children—to pursue the “American Dream”—are woven throughout the social, political, and economic fabric of the Nation.
Immigrants are leading entrepreneurs. “The American economy stands apart because, more than any other place on earth, talented people from around the globe want to come here to start their businesses.” Partnership for a New American Economy, The “New American” Fortune 500. Some of these businesses are large. Immigrants or their children founded more than 200 of the companies on the Fortune 500 list, including Apple, Kraft, Ford, General Electric, AT&T, Google, McDonald’s, Boeing, and Disney. Collectively, these companies generate annual revenue of $4.2 trillion and employ millions of Americans.
More to come?
The filing also expresses concern that the travel ban order might be extended to other countries:
If the Order stands, it is impossible for individuals and businesses to anticipate which countries may be affected next. The Order itself promises to ban individuals from additional countries if those nations do not provide information the Secretary of State deems necessary to approve visas.
This uncertainty is likely to have a negative impact on prospects of ensuring that US firms are able to attract the best talent:
Businesses and employees have little incentive to go through the laborious process of sponsoring or obtaining a visa, and relocating to the United States, if an employee may be unexpectedly halted at the border. Skilled individuals will not wish to immigrate to the country if they may be cut off without warning from their spouses, grandparents, relatives, and friends.
And it’s not just about immigration, but the prospect of discouraging necessary global travel, warns the filing:
The Order’s bans on travel are also significantly impairing day-to-day business. The marketplace for today’s businesses is global. Companies routinely send employees across borders for conferences, meetings, or job rotations, and invite customers, clients, or users from abroad. Global mobility is critical to businesses whose customers, suppliers, users, and workforces are spread all around the world.
While recognising the need to protect the US from terrorism and other threats, the filing argues that the Executive Order is a blunt instrument rather than a precision tool to achieve this, insisting that it is not “reasonable” in its scope:
The Order says that its purpose is to “prevent infiltration by foreign terrorists or criminals.” But the ban it imposes applies to millions of individuals who could not plausibly be foreign terrorists: hundreds of thousands of students, employees, and family members of citizens who have already been admitted to the United States; thousands of visa-holders who have already passed the Nation’s rigorous screening process; and countless peaceful individuals residing or born in the targeted countries. The Order is also under-inclusive with respect to its goal; a number of countries left off the list have a greater incidence of terrorist attacks than the seven the Order includes.There is a mismatch between means and ends.
In related news, Uber CEO Travis Kalanick stepped down from his position on the President’s business advisory council, which met on Friday. This followed a backlash from both customers and Uber’s network of drivers. Kalanick moved to distance himself from the Trump position in an email:
Joining the group was not meant to be an endorsement of the president or his agenda but unfortunately it has been misinterpreted to be exactly that.
The meeting with Trump took place on Friday as planned. Tesla CEO Elon Musk said he was staying on the council, but said he would argue against the travel ban:
I and others will express our objections to the recent executive order on immigration and offer suggestions for changes to the policy.
Musk also appeared to put some distance between him and the President when he added:
Advisory councils simply provide advice and attending does not mean that I agree with actions by the Administration.
The only other tech industry CEO at Friday's meeting was IBM's Ginny Rometty, who wrote to Trump days after his election victory, telling him:
I know that you are committed to help America’s economy grow in ways that are good for all of its people.
IBM did issue a statement in the wake of the Executive Order, but did not mention it by name, only making a generic statement about its mission statement:
As we shared with all IBMers this weekend, we have always sought to enable the balance between the responsible flow of people, ideas, commerce and information with the needs of security, everywhere in the world. As IBMers, we have learned, through era after era, that the path forward – for innovation, for prosperity and for civil society – is the path of engagement and openness to the world. Our company will continue to work and advocate for this.
This isn’t an argument that’s going away anytime soon. As I was writing this article, Mr Trump hit Twitter for what’s becoming his early morning message to the world. Today’s shows no sign of him being open to reconsidering his position.
I can only support the 97 signatories of the legal filing and hope that they succeed in their stand.