JURIST Guest Columnist Mohamed Arafa, Professor of Law at Alexandria University, discusses the impact of the Supreme Court upholding the travel ban on predominately Muslim countries...
In what may have been one of the most consequential decisions since the notorious Korematsu case of 1944, when the Supreme Court upheld the incarceration of Japanese-Americans during World War II, the Court (in June 2018) voted 5-4 vote to uphold President Donald Trump’s travel ban. Like the Korematsu judicial ruling, Trump v. Hawaii raises questions about procedural formalities while avoiding questions of discrimination and prejudice.
In January 2017, when President Trump’s so-called Muslim ban was first declared, it was one of the most alarming executive orders issued by a president in the recent memory. Trump signed a controversial executive order on January 27, 2017 stumbling all refugee admissions and temporarily barring individuals from seven Muslim-majority countries. President Trump’s second attempt to bar refugees and immigrants (or even non-immigrants) from several mostly Muslim countries has faced months of legal to-and-fro. The original travel ban included Iraq but an exception was made after it – in the second executive order – was pointed out to the administration that numerous interpreters and others who assisted US troops during the war would have been banned from entering the US also in assisting in fighting radical Islamists and defeating terrorist radical groups like alQa‘daa and Da‘esh (ISIS). And now, the Supreme Court’s fresh decision means that individuals from six mainly Muslim nations and refugees will be temporarily banned from the US unless they have a “credible claim of a bona fide relationship with a person or entity” in the country. This offers a main exception to the ban that specialists say will significantly reduce the number of people who can be denied entry. It should be noted that the first version of the travel ban appears to have been envisioned to troll liberals; obviously discriminated based on belief and religion. The very fact of being Muslim was the main reason(s) for inspection and scrutiny. One clause effectively forced a religious test. Thus, refugees facing religious oppression could be admitted but only if “the religion of the individual is a minority religion in the individual’s country of nationality.”
This revised version, issued in September 2017, seems to be designed to provide legal cover to justify the ban on the other countries that are covered, as Chief Justice John Roberts wrote that the president’s order was “neutral on its face.” The Supreme Court in Trump v. Hawaii held that President Trump’s ban on travel from a set of mainly Muslim countries could for now be executed, ignoring reams of evidence that it was motivated by religious animus rather than genuine national security concerns, and the Court’s decision doesn’t entirely exclude legal challenges to the policy. In holding that the ban could go into effect, though, the Court raised the bar for a successful constitutional test by putting forward a legal norm that is extremely deferential to the government. The Court did not adopt a test often implemented when it’s assumed that the government has pursued a religiously discriminatory strategy in violation of the Establishment Clause of the First Amendment of the US Constitution. That test asks the Court to consider whether “a reasonable observer would view the government action as enacted for the purpose of disfavoring a religion.” Under the umbrella of the “reasonable observer” test, it is problematic to see how the Court would have permitted the ban to go into effect given the rich record of President Trump’s anti-Muslim statements, including those associated with the ban. Instead, the Court adopted a standard that basically requires claimants to show that animus is the only way to explain the ban.
The president’s motive is undoubtedly not neutral in intent. Trump and some of his senior aides have openly expressed animus toward Muslims, Islam, or both. Thus, how much should intent matter? Constitutional law scholars – and the Supreme Court per se – are divided. For instance, Justice Sonia Sotomayor in her dissent cited Trump’s rather long paper path to argue that “taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus.” But the extent to which specific inspirations factor more than others is always hard to prove. Further, it’s conceivable that someone’s intent or motive changes over time. What we do know of the original order is no longer evident in its revised version, so what might have originally been an unambiguously discriminatory “Muslim ban” is something else at the current moment.
Chief Justice John Roberts’ majority opinion in favor of the ban draws upon instead on the president’s legal authority to block immigration in the name of national security. In this respect, the ruling continues a long tradition of ceding authority over foreign policy to the executive. Yet, the discriminatory origins of the ban do matter. Roberts’ opinion focuses on the Immigration and Nationality Act, which gives the US president the power to reject or exclude foreigners if he/she finds that their entry “would be detrimental to the interests of the United States.” Yet, to focus entirely on that is, treating one of the most discriminatory acts in the modern history of the U.S. as if it was exercises of presidential power taken by a president acting in conscience.
Roberts’ opinion does not entirely ignore Trump’s anti-Muslim declarations and its connections to the travel ban. However, he also maintains that the “issue before us is not whether to denounce the statements.” Rather, Roberts claims, the court’s focus must be on “the significance of those statements in reviewing a presidential directive, neutral on its face, addressing the matter within the core of executive responsibility.” That is attorney-speak for saying that, regardless of its clarity, the court is choosing disregard Trump’s anti-Muslim bigotry or racism. Justice Roberts’ view is that, the court should accept it at face value no matter what attitudes lie behind it.
That’s exactly what the Supreme Court did in the Korematsu case. Justice Hugo Black denied that the orders to inter necessitating the custody of Japanese-Americans was based on racial bias. The dissenters, particularly Justice Frank Murphy, emphasized that this was outrageous. The Court limited its decision to the validity of the exclusion orders: “the provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding.” During the case, the Solicitor General is alleged to have suppressed evidence by keeping from the Court a report from the Office of Naval Intelligence that there was no evidence that Japanese Americans were acting as spies or sending signals to enemy submarines and based on this prosecutorial misconduct.
In the case of the travel ban, Justice Sonia Sotomayor played Murphy’s role. Her dissent, joined by Justice Ruth Bader Ginsburg, states that any reasonable observer looking at Trump’s record would conclude that the ban was “motivated by anti-Muslim animus.” She appeals to the Korematsu case in explaining that the government then also evoked national security to justify discriminatory practices. She concluded that “our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments.” In addition to the president’s anti-Muslim remarks, the recent complaint offers a substantial amount of public information that destabilizes the administration’s story about the policy’s genesis. It should be noted that dissenting in Trump, Justice Stephen Breyer wrote: “[I]f the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a “Muslim ban,” rather than a “security-based” ban, becomes much stronger.” Legal scholars and political scientists suggest that the waivers from the ban are not being granted to eligible people. Also, the text in the first Muslim ban – a policy functionally equal to the current version – was lifted verbatim from an August 2016 speech then-candidate Trump gave entitled “Understanding the Threat: Radical Islam and the Age of Terror.”
Pragmatist Justice Stephen Breyer was joined by Justice Elena Kagan in a thoughtful dissent focused on the system of immunities or exemptions that the executive order authorizes. If those exceptions were to be used, Breyer wrote, it would lend some credibility to the notion that the ban was in fact inspired by national security. The administration’s “worldwide review” to recognize insufficiencies in the vetting practices of the world’s nearly 200 countries, and inform which to target with travel restrictions, was in fact a mechanism to reverse engineer the original Muslim ban. The current ban substantially overlaps with previous iterations released before the review. However, it excludes people from many countries that meet the review’s requirements and permits travel from those that don’t. Currently, the government’s inclusion in the ban of non-predominantly Muslim countries is a red herring. In practice, very few people will be affected from those countries. Practically, one can imagine that Breyer hopes the travel ban won’t really be imposed in practice, and so needs to boost the exemptions to be used. Regrettably, the injustice of the travel ban lies as much in its emblematic (symbolic) outcome as in its barring of individuals from five Muslim-majority countries. This wasn’t the right case for Breyer and Kagan to be quite so rational and maybe Breyer also didn’t want to alienate Kennedy – the retired justice, succeeded recently by Justice Brett Kavanagh nominated by Trump – whose votes the liberals will need on future matters. Courts may be great places to bend the arc of history toward justice, but they’re only great places for that when they agree with whatever we already think is just.
Because the case was before the Supreme Court as the result of a preliminary injunction, not after a trial – according to the general rules within the US procedural legal system – it is still tentatively possible for the lower courts to hold a trial to consider further indication of presidential prejudice. The dilemma is that evidence of Trump’s bias has already been acknowledged, realized, and found inadequate by the justices. Hence, without some substantial new piece of evidence, it’s complicated to see how a lower court could find that the proclamation was motivated – in real terms – by anti-Muslim bias. To President Trump’s supporters, this decision was an affirmation by the highest court in the land of his right to secure United States territorial borders and protect it from terrorism or radical Islamic terrorism, as he always refers to. To opponents, the ruling validated an anti-Muslim agenda that betrayed American values, undermined the Constitution and dashed at the hopes of thousands of families affected by war, persecution, and deprivation. But no deadly terror attacks have been conducted on US soil post-9/11 by any people from the countries on the travel ban list – according to research from the New America Foundation – and none of the perpetrators of the 9/11 attacks were from any of the countries on the travel ban list. Along these lines, critics continue to argue the ban is motivated by anti-Muslim sentiments rather than any real threats to US national security.
The timing of the judgment only reinforced a climate of hostility toward migrants in the West. Three of the Muslim-majority countries affected by Trump’s order – Syria, Libya, and Yemen – have known only war for years, while Somalia has suffered through variable degrees of chaos for decades. Though Trump’s order ostensibly allows for permits for exemptions on a case-by-case basis. The administration has argued that courts have no role to play because the president has broad powers over immigration and national security, and foreigners have no right to enter the country. Legal scholars have said in written arguments that Trump’s September proclamation laying out the current policy comports with immigration law and does not violate the Constitution because it does not single out Muslims. The challengers have said that Trump is flouting immigration law by trying to keep more than 150 million individuals, most of them Muslim, from entering the country. They also argue that his policy amounts to the Muslim ban that he called for as a candidate, violating the Constitution’s prohibition against religious bias.
The practical effects on the two non-Muslim majority nations covered by the travel ban –Venezuela and North Korea – are negotiable. The limitations on Venezuelans apply only to a narrow group of public officials. North Koreans for their part, have never been allowed to travel outside their country by their own repressive government. “Most people have forgotten that North Korea was added to the list of countries subject to the ban, mostly as a way of making it look less like an anti-Muslim measure,” according to Evans J.R. Revere, a former State Department diplomat who is an expert on North Korea. Also, Sung-Yoon Lee, a professor of Korean studies at Tufts University, said “the inclusion of North Korea is likely to be reversed by the administration – that is, used as a chip in further advancing the illusion of rapprochement.”
Iranians are especially affected by the ban. Approximately one million American citizens of Iranian origin live in the United States. Jamal Abdi, Vice President of Policy at the National Iranian American Council, a Washington-based advocacy group, said that “Iranians cannot travel here [US] unless they get a waiver. The waiver process is unpredictable, with no explanation of how it will be implemented.” The impact of the ban, as well as Trump’s decision to withdraw from the 2015 nuclear deal with Korematsu and Trump vs. Hawaii are both cases where the Supreme Court relinquished its moral leadership.
Trump’s opinions are obnoxious and hateful to logic and human experience. Trump’s speeches, declarations, and comments cannot be elapsed or ignored and perhaps now is as good a time as any for the current President to absorb the age-old concept that a person’s uncontrolled statements can come back to haunt them. The debate over the Trump White House’s attitude toward Muslims is more than merely academic. Previous presidents have gone out of their way to say their problems are not with Islam as a faith, if only to serve as a public counterbalance to their use of US military power in or against Muslim nations. “The face of terror is not the true faith of Islam,” President George W. Bush said shortly after the 9/11 attacks, “that’s not what Islam is all about. Islam is peace.” President Obama has made comparable remarks, noting that “it’s very important for us to align ourselves with the 99.9% of Muslims who are looking for the same thing we’re looking for, order, peace, prosperity.” There’s an old saying, “one bad apple spoils the bunch.”
This holds true when we discuss both the historical and current general perspective of Americans or Westerns towards Arabs and Muslims. Why have I stated Arabs and Muslim throughout this essay? They are separate and diverse peoples. Not every Arab is a Muslim and not every Muslim is an Arab. What have we seen by tracking U.S. immigration policy throughout history? We have seen that the general attitudes of the U.S. towards non-white, non-Christian people to be extremely negative and highly deserving of the word “animus.” U.S. courts of the past adopted and supported these same points of view. Animus against Arabs and Muslims was very obvious in the opinions of U.S. courts who classified them among the “undesirables.” The U.S. must accept some of the blame for allowing these radical groups to promulgate and commit the terrorist acts against humanity which have stricken so much fear and distrust into western society. Is U.S. immigration policy in the Arab region necessary policy or racial animus?
I think it is a combination of both – but the animus is winning right now. The “extreme” tactics and rhetoric promulgated by President Trump and his supporters is a complete showing of animus guised in the veil of legitimate policy. However, given that these groups do exist and that they are a real threat to all persons – not just westerners – legitimate, intelligent policies must be in play to minimize the damage they cause until humanity learns to live with itself peacefully. These policies must be consistent across all races, faiths, and classes of immigrant. The “extreme vetting” of persons from certain states only serves the message of extremists – the U.S. is racist beast that disdains all non-white, non-Christians. The U.S. is a beautiful place to live with so much promise. When American or westerns call themselves the “Melting Pot,” They must ask if they mean this sincerely or not. Do they really welcome all faiths and races or only those that conform to their certain points of view? In other words, must one assimilate to be part of the melting pot or will they forget animus of the past? I hope so. The world is a much more beautiful place when there is a plethora of colors, shapes, ideas, beliefs, and points of views.
Mohamed Arafa is an Assistant Professor of Law at Alexandria University Faculty of Law (on sabbatical) and Adjunct Professor of Law at Indiana University Robert H. McKinney School of Law. He received his SJD from the Indiana University Robert H. McKinney Law School, his LL.M from University of Connecticut School of Law, and his LL.B from Alexandria University Law School. Currently, he is a Visiting Professor of Law at the University of Brasília School of Law. In 2018/2019, he was a Visiting Scholar and Adjunct Professor at Cornell Law School which he will be back in 2020. He was the Managing Editor of the Arab Law Quarterly Journal in London. His teaching and scholarship focus on criminal law, white collar crimes, human rights law, Islamic law, Islamic criminal law, and transitional justice.
Suggested citation: Mohamed Arafa, Donald Trump’s Travel Ban: Political, Legal, Moral or Something Else?, JURIST – Academic Commentary, April 30, 2019, https://www.jurist.org/commentary/2019/04/mohamed-arafa-donald-trumps-travel-ban/
This article was prepared for publication by Brittney Zeller, an Associate Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org
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