Berkeley, CA: The Supreme Court’s 5-4 decision on June 26 upholding Donald Trump's Muslim ban in the Trump v. Hawaii case has effectively inscribed bigotry into American law, despite both a constitutional and a statutory prohibition against discrimination on the basis of religion and national origin.
A slim majority of the Court chose to turn a blind eye to President Trump’s incessant and inflammatory rhetoric against Muslims by upholding his policy to ban from entry to the US immigrants and visitors from several predominantly-Muslim countries.
Under the current ban nationals from eight countries are subject to travel restrictions, varying by country. While Venezuela and North Korea are on the list, the ban overwhelmingly targets Muslim-majority countries including Chad, Iran, Syria, Libya, Somalia, and Yemen. This policy has tremendous consequences for more than 150 million people, the majority of whom are Muslim.
This troubling decision is antithetical to the work of the Haas Institute to advance a fair and inclusive society in which refugees, immigrants, and their families and loved ones are welcome.
The ban under challenge was the third iteration of the travel ban. The original version, issued a week after taking office on January 27, 2017 under the title “Protecting the Nation from Terrorist Entry into the United States,” imposed a 90-day entry ban on citizens from seven Muslim-majority countries and a 120-day hold on refugee admission. There were various exceptions provided, including a provision that would allow the Secretary of Homeland Security to prioritize refugee applications of religious minorities in the targeted countries.
After a string of defeats to his order in the lower courts, Trump issued a new executive order on March 6, 2017 under the same header that superseded the previous order. The new order omitted the exception for religious minorities, clarified that lawful visa holders from the named countries would be permitted to enter the country, and removed Iraq from the list of prohibited countries, among other changes.
Clearly unhappy with the changes, ostensibly designed to survive a Supreme Court challenge, the president described this second order as a “watered down, politically correct version.” After the issuance of the second order, two federal district courts in Hawaii and Maryland enjoined the enforcement of it. In both decisions, the courts found it likely that the plaintiffs can succeed on their religious discrimination claim. The Trump administration appealed these cases to the Supreme Court.
On June 26, 2017 the Court issued an order that lifted the stays issued by the lower court, but with some exceptions, including those applied to individuals by the lower courts thus far or individuals with a “credible claim of a bona fide relationship with a person or entity in the United States.”
Following the expiration of the second executive order, the Trump administration issued the current ban, entitled “Proclamation No. 9645: Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.”
The split decision by the Supreme Court is reminiscent of its infamous ruling in Korematsu v. United States 74 years ago, which banished Japanese Americans from their homes and warehoused them in concentration camps based on national security concerns. As the Japanese American Citizens League rightfully pointed out in their amicus brief: “history teaches caution and skepticism when vague notions of national security are used to justify vast, unprecedented exclusionary measures that target disfavored classes.”
Upholding the travel ban has collateral effects on Muslim populations currently in the US as well—students, work-visa holders, and lawful residents that come from the restricted states were deterred from reuniting with family members and loved ones. For instance, children living in the US cannot bring their parents to the US for a visit, and elderly family members needing immediate medical attention will be denied entry.
This decision is likely to spark even more of an uptick in Islamophobic rhetoric and hate crimes, allowing the Trump administration to further institutionalize Islamophobia into US foreign policy programs.
As we included in our global Inclusiveness Index, one measure of a nation’s degree of inclusiveness is its immigration and asylum policies—these policies are reflective of the values and perspectives of the society, especially in relation to marginalized groups and how welcoming or tolerant the dominant group is of newcomers and those perceived “outgroups.”
As we noted in our statement last year about this deeply anti-democratic executive order (and others), these policies are intentionally divisive and based on a manufactured fear of the Other.
The Haas Institute will work with and support allies across the country to resist and call out continued racial and ethnic bigotry directed towards Muslims and those perceived to be Muslim.
As Justice Sotomayor and Justice Ginsburg observed in the dissenting opinion, “the United States of America is a Nation built upon the promise of religious liberty.”
Any policy or law allowing for the discrimination of minorities runs afoul of our deepest values.