By Gamal Gasim, PhD (Grand Valley State University)
After only one week in the White House oval office, President Trump signed Executive Order 13769 (EO-1) ordering a temporary ban on entries to the United States by citizens of seven Muslim-majority countries. The original list included Yemen, Iraq, Sudan, Syria, Libya, Iran, and Somalia. The EO-1 justified the comprehensive ban by pointing to the terrorist attacks of September 11, 2001 when State Department policy had “prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans.” Civil rights advocates have raised serious concerns about the validity of the national security argument because none of the 19 foreign national hijackers who carried out the September 11 attacks came from the countries listed in EO-1. After a number of states challenged EO-1 in federal court on the basis of religious discrimination, President Trump issued a second version of his Executive Order 13780 (EO-2) in March 2017, and six months later he signed a third version through a presidential proclamation (EO-3). While the first two Presidential executive orders imposed 90-day suspensions on entry into the United States by citizens of specified Muslim-majority countries, the third version removed Chad and Sudan but added Venezuela and North Korea and extended the suspension of entries indefinitely.
In Trump v. Hawaii, the Plaintiffs—the State of Hawaii, three individuals with foreign relatives affected by the entry suspension, and the Muslim Association of Hawaii—argued that the travel ban is prohibited under the United States Constitution because of its discriminatory nature against Muslim foreign nationals. In late 2015, Presidential candidate Donald Trump called for “a total and complete shutdown of Muslims entering the United States.” His political rhetoric during the 2016 presidential campaign was central to the Plaintiff’s argument that EO-3 still violates the Immigration and Nationality Act (INA) and the Establishment Clause. In July 2018, the United States Supreme Court rejected this claim and upheld the EO-3 version of President Trump’s travel ban.
President Trump’s administration viewed the Supreme Court’s ruling as a vindication of his constitutionally granted powers to regulate immigration and protect national security, Muslim Americans viewed the decision as yet another discriminatory decision similar to other past Government acts in which they were singled out, such as the PATRIOT Act of 2001. Special registration and additional airport security screening required under the PATRIOT Act for some foreign Muslim visitors and students entering into the United States were not well received within the Muslim-American community. The current level of discrimination as perceived by the Muslim-American community has now been sweepingly confirmed by the highest court in the land. Reacting to the Supreme Court’s Trump v. Hawaii decision, Keith Ellison—the first Muslim politician ever elected to Congress—tweeted, “Like the Korematsu decision that upheld Japanese internment camps or Plessy v. Ferguson that established ’separate but equal,’ this decision will someday serve as a marker of shame.” Moreover, the largest Muslim-American civil rights organization, the Council on American-Islamic Relations (CAIR) viewed the Trump v. Hawaii decision as a huge setback to the civil rights of this vulnerable minority community.
Indeed, Muslim Americans may at least find emotional support in the dissenting opinion of Justice Sotomayor who concurred with the Plaintiffs’ argument stating that the Presidential proclamation, “paints a far more harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.” Justice Sotomayor further argued that Trump’s presidential campaign website included a statement about the Muslim travel ban with survey data collected by Pew Research that suggested, “there is great hatred towards Americans by large segments of the Muslim population.” In the same statement, Justice Sotomayor observed a reference to Islamic sharī’a as responsible for authorizing “such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.” However, the Court’s Trump v. Hawaii decision reflected the ideological division among the sitting justices (5 to 4) where the five conservative judges appointed by Republican presidents sided with the legal defense of the current Republican administration.
What is missing in the current debate, however, is the potential for President Trump to now reinstate a nearly complete shutdown of Muslims entering into the United States without calling it a Muslim ban. Appealing to his ardent core supporters, President Trump could theoretically expand the existing list of Muslim countries to include other Muslim-majority countries such as Afghanistan, Bangladesh, Mali, Mauritania, Algeria, Pakistan, Uzbekistan, and Tajikistan, as well as reinstating Sudan and Chad. In other words, the original EO-1 travel ban could be restored under the guise of national security based on the constitutional guidance provided by the Supreme Court’s Trump v. Hawaii decision.