On Wednesday, the U.S. Supreme Court will hear arguments against the third iteration of President Donald Trump’s Muslim ban. The case – Hawaii v. Trump – is the culmination of several challenges to the discriminatory and the Brennan Center argues, illegal policy. The Center filed its own suit against the ban, alongside the Council on American-Islamic Relations, representing six American Muslim plaintiffs. Those plaintiffs are just a small subset of the thousands of Americans and their families who are suffering harm since the Court allowed the ban to be implemented in December of 2017.
Co-director of the Brennan Center’s Program on Liberty and National Security Faiza Patel says Wednesday’s arguments will be a test for just how much the Supreme Court is willing to rein in an “obviously bigoted policy.”
How did this all get started?
Faiza Patel: During his campaign, now-President Trump promised to ban Muslims from the US. This generated a huge amount of shock, and a week into his presidency, he decided to implement his campaign promise. He issued an order that banned people from seven mostly-Muslim countries from coming to the US. What’s currently in the court is the third version issued in September 2017.
Like the bans that came before it, this third iteration was challenged, and like the previous two, federal district courts and courts of appeals have all said the plaintiffs have shown a likelihood of success on their argument that the ban is illegal and unconstitutional.
What arguments will likely come up before the justices?
FP: Attorneys for the state of Hawaii will argue that the ban violates the 1965 Immigration and Nationality Act [INA], which prohibits discrimination on the basis of, among other things, religion and nationality. Prior to 1965, our immigration laws operated in an explicitly discriminatory way, setting quotas that heavily favored immigration from Western European countries. The INA passed amid the civil rights era and took a very different tack: it did away with national-origin quotas and emphasized family reunification and the need to meet labor needs.
Attorneys for Hawaii will also argue that the ban violates what’s known as the establishment clause of First Amendment, which prohibits the government from favoring or disfavoring a certain religion. The argument is that it’s obvious the intent of the ban was to keep Muslims out of the US, which is effectively the US government disfavoring people solely based on their religion.
But didn’t the Trump administration modify the ban to avoid the appearance of explicitly banning Muslims?
FP: One of the big questions in this case is whether or not the court will restrict itself to looking at the four corners of the order or will actually look at the context. President Trump has explicitly said he wants to keep Muslims out of the country, and has never backed down from his stated goal. He hasn’t called it a Muslim ban recently, but he continues to portray Muslims as terrorists while remaining conspicuously silent about other types of violence, especially violence perpetrated against minorities.
In this instance, when courts are looking at the establishment clause, they’re asking: what was the government’s intent? Are they intending to discriminate against one religion, or are they being neutral? As they say, you can try and put lipstick on a pig, but it’s still a pig.
Who are the people suing the government?
FP: There are two kinds of plaintiffs. There are institutional plaintiffs like the state of Hawaii, which is suing because as a state, they say they’ve been injured. Then you have individuals who’ve themselves been harmed by the ban. One thing to remember is that this case isn’t being brought on behalf of foreigners overseas. It’s brought on behalf of people here in the US who are injured because, for example, they can’t bring family members over.
In our case, for instance, Fahed Muqbil is an American citizen who grew up in Mississippi. He went to Yemen and married a woman, had two kids, and then moved to Egypt. One of his daughters suffers from spina bifida, and so Fahed decided to bring her to the US for treatment. But his wife and other daughter were stuck in Egypt, banned from receiving a visa. A mother was kept from her daughter’s side simply because she has a Yemeni passport. An American citizen was separated from his wife and child. These are the types of injuries that result from the ban.
Traditionally, courts have been deferential when it comes to national security and the president’s powers. How might this case be different?
FP: This is the first time the Supreme Court will hear a direct challenge to one of President Trump’s policies, so we’ll be watching to see how the justices react to the government’s arguments. So far, the federal courts have been skeptical of this administration in a lot of contexts; we’ve seen this with the transgender ban and arguments over sanctuary cities.
In the case of the Muslim ban, we have clear anti-Muslim intent. They can dress is up as national security, but there is so much evidence of the administration’s animus toward Muslims that it’s difficult to ignore. It will also be interesting to see how much the court is willing to stray from its traditional deference when it comes to cases of national security. Often the court is willing to show leeway when it comes to the president’s national security powers. But the court has also pushed back. We saw that around some of the Guantanamo cases where the court intervened and restricted the executive branch.
Lurking in the background of all of this is a case called Koramatsu v. United States. Koramatsu was a case challenging the internment of Japanese citizens during World War Two. The Supreme Court actually upheld the unjustified internment of American citizens. And in the decades since, it’s clear that decision was wrong and is reflective of shameful racial prejudice. Here, some 70 years later, the government is trying to make the same assumptions that were made about Japanese Americans: that your ethnicity or your nationality or your religion gives some indication of your dangerousness.
We won’t hear a decision for a few months, but what do you think will make this case stand out in history?
FP: It will for many reasons. First, it raises significant issues of executive power. Second, it’s the first time the establishment clause has been invoked in an immigration case. And third, leaving the legal issues aside, the outcome will have an enormous impact on the Muslim American community and how it perceives its place in the US. It’s also going to have a huge impact on how the rest of the world perceives the United States. We’ve always been justly proud of our court system and the separation of powers. The world is watching to see if the Supreme Court will stand up to this obviously bigoted policy.