A bitterly divided U.S. Supreme Court on Tuesday in Trump v. Hawaii reversed the preliminary injunction of the latest iteration of President Trump’s long-promised Muslim ban. It was a devastating day for Muslim people everywhere—many of whom now may be separated from their family members indefinitely—and for everyone who believes in the fairness and equality at the heart of this country’s Constitution and laws.
The Supreme Court majority’s decision in Trump v. Hawaii joins Korematsu v. United States—the infamous decision validating the internment of Japanese Americans during World War II—as among the Court’s most deeply misguided decisions.
In Trump v. Hawaii, the Supreme Court heard an appeal of an injunction of President Donald Trump’s third iteration of his “Muslim ban”, which prohibits nationals of six majority-Muslim nations (Syria, Iran, Chad, Libya, Yemen, and Somalia) from coming to the United States under certain visa categories. (Chad was later removed from the list, just before oral argument.) As a result of the president’s proclamation, U.S. citizens and lawful permanent residents are indefinitely separated from their spouses, children, parents, and siblings abroad.
People abroad are unable to travel to the United States for life-saving medical care, to attend U.S. universities, or to accept jobs engaging in specialized research that would benefit the United States.
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While the president’s ban did not directly apply to refugee processing (the Trump administration suspended admission of most Muslim refugees in a separate order), it did affect refugees and others in humanitarian need from the targeted countries who were depending on immigrant visas (outside the refugee admissions process) to flee imminent danger and to reunite with their families. For example, Yemenis—who must travel to Djibouti to have their visas processed because there is no U.S. embassy in Yemen—are now stuck in a foreign country, unable to return home or to reunite with family in the United States.
Every appellate court that had considered the injunctions of this and the two prior iterations of President Trump’s Muslim bans—including the Fourth Circuit in International Refugee Assistance Project (IRAP) v. Trump, in which the IRAP is a named plaintiff and co-counsel—had upheld the injunctions.
Reversing the Ninth Circuit’s decision, the Supreme Court held in Trump v. Hawaii that the ban did not overstep the president’s statutory authority and that plaintiffs were not likely to succeed on their claim that it was unconstitutional. With respect to the president’s statutory authority, the Court held that the president has broad discretion in barring foreigners from this country under the particular provision of the Immigration and Nationality Act that he invoked, and that he acted within this statutory authority in issuing the ban.
As for the plaintiffs’ claim that President Trump discriminated against Muslims in violation of the Constitution’s Establishment Clause, the majority opinion simply found that the proclamation had at least a plausible relation to its stated national security objective, and there was no more to do. The majority refused to examine the history of this Muslim ban—which, after all, began with Donald Trump as a candidate calling for a “total and complete shutdown of Muslims entering the United States.”
What was striking and disappointing about the majority opinion was its ready acceptance of the Trump administration’s description of and justification for the latest iteration of the Muslim ban, despite mounting evidence in the past year that the administration’s positions are not grounded in reality. For example: The proclamation—which announced baseline information-sharing and risk-assessment criteria that countries had to meet to avoid the ban—is itself rife with internal inconsistencies, such as banning nationals of Somalia even though Somalia met the baseline criteria, and not banning nationals of Iraq, even though Iraq failed to meet the criteria.
And, as Justice Stephen Breyer noted in dissent, just earlier this month, a former government official filed a sworn statement in a federal case saying that the proclamation’s case-by-case waiver provision—which purports to allow those subject to the ban who have compelling need, and who do not present a security threat, to receive individualized permission to enter the United States—is a sham and officers had no discretion to grant waivers.
This revelation came across the backdrop of the context with which we’re all familiar: A presidential candidate who campaigned on a Muslim ban immediately put it into effect within days of taking office, tweaked it slightly in subsequent iterations, and continues—to this day—to make anti-Muslim statements. As Justice Sonia Sotomayor pointed out in dissent, had the Court examined this evidence, it would have been obvious that the “new window dressing” of national-security concerns “cannot conceal an unassailable fact: The words of the President and his advisers create the strong perception that the proclamation is contaminated by impermissible discriminatory animus against Islam and its followers.”
The Supreme Court’s willingness to defer to the executive’s bare invocation of national security, despite the evidence of discriminatory animus against Muslims and despite a devastating impact on a broad class of Americans, is what makes this decision today’s Korematsu.
The majority claimed that “Korematsu has nothing to do with this case” and formally repudiated it as “gravely wrong the day it was decided.” Yet, as Justice Sotomayor explained, the majority “redeploy[ed] the same dangerous logic” in this case, by “blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group.” The Court has unfortunately repeated this country’s shameful history and issued yet another “gravely wrong” decision, one that will separate families and harm Americans indefinitely.
On this difficult day for our country, it is, however, important to emphasize that Tuesday’s decision is limited to the particular facts and legal claims that were before the Supreme Court and does not touch on the many other challenges to this administration’s xenophobic immigration policies, including to its Muslim refugee ban and its shutdown of the Central American Minors program. These court battles will surely continue to be litigated.