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The Fight Against Trump’s Muslim Ban Isn’t Over

Repealing the ban, which is turning two, would send a powerful message to Muslim Americans that the pain and prejudice they suffer matters.

January 25, 2019

On January 27, 2017, two years ago Sunday, President Trump fulfilled a campaign promise, blocking people from seven Muslim countries from entering the U.S. Thousands immediately thronged airports across the country to help travelers, protesters filled the streets for weeks, and federal courts quickly enjoined Trump’s order. The response encapsulated many Americans’ deep resistance to the president’s bigotry and xenophobia. 

Today, other immoral policies dominate the news. The Muslim ban has been in effect for over a year, upheld by the Supreme Court despite overwhelming evidence that it was motivated by religious animus not national security. The ban, once so unthinkable, almost seems normalized.

But the fight against the Muslim ban is not over. All of us who believe in the fundamental values of religious freedom and diversity must act.

Life is far from normal for those affected. Families are still being separated, not at the border where we can see their faces, but in far-away consular outposts. Their stories sometimes break through the news cycle, but only if they are particularly heart-wrenching. Shaima Swileh, the Yemeni mother, was kept from the California hospital where her two-year old son lay dying until press attention convinced the administration to grant her a waiver. For the most part though, the people caught up in the ban remain nameless and faceless to many Americans.

For Muslim Americans, the impact is ongoing. Even those who don’t have family and friends blocked by the ban feel the stigma. The highest court in the country essentially validated the notion that their faith is so dangerous that many Muslims simply aren’t allowed in. The administration continues to double down on painting Muslims as a threat, suggesting that terrorists are flowing unchecked over the southern border. Trump tweets uncorroborated claims about Middle Easterners in a caravan heading to the U.S., and prayer rugs found by ranchers in New Mexico. Secretary of Homeland Security Kirsten Nielsen and Vice President Mike Pence play fast and loose with numbers to suggest that there might actually be some basis for the president’s fear-mongering.

Congress must bring to a vote bills that repeal or defund the ban as a priority, not a gesture. In 2017, both the House and Senate introduced such legislation. It didn’t go anywhere, as Republicans who had once decried banning people based on their faith fell into line with the administration’s bigotry. Action by the House of Representatives may not change the facts on the ground today, but it will send a powerful message to Muslim Americans that the pain and the prejudice they suffer matters.

All those who came out on the streets to protest should spring into action again. They should not assume that a future Democratic administration will overturn the ban. History shows that national security measures are hard to reverse. As Barack Obama came into office, there was widespread consensus across the political spectrum that the prison at Guantanamo Bay, emblematic of the excesses of the war of terror, should be closed. Two days after taking office, Obama signed an executive order to close the prison as soon as practicable. But the political winds shifted and 11 years later it remains open for business.

Today, all but the president’s diehard supporters agree that using nationality as a proxy for banning people based on their religion is both wrong and ineffective. National security professionals from Democratic and Republican administrations filed briefs in the Muslim ban cases making this point. The media amplified empirical analyses showing that the chance of being killed in a terrorist attack by a foreign-born terrorist are close to zero. Pundits zoomed in on the fact that the Muslim ban didn’t cover Saudi Arabia, the home of the 9/11 attackers. 

But a high-profile terrorist attack by a national of one of the Muslim ban countries could change that. As Justice Robert Jackson wrote, dissenting from the Supreme Court’s validation of Japanese internment in Korematsu, these types of tools “l[ay] about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” 

That is why Muslim American and civil liberties groups, including the Brennan Center, are continuing to pursue litigation to end the travel ban. The Supreme Court’s decision allowing the ban to stay in place did not close the door to a constitutional challenge. It set a high bar for proving that the administration had acted based on religious animus, but not an insurmountable one, and the case remains alive. Others have mounted challenges to the administration of waivers to the ban. Touted by the administration as allowing exceptions for humanitarian reasons, in practice the scheme has resulted in blanket denials of waivers even in the most obviously compelling cases. 

The Constitution and our fundamental values cannot defend themselves. And the tiny minority of Americans who are Muslim cannot fight this alone. As the ban turns two, all of us must keep pressing our representatives to prioritize repealing it, and to forcefully reject its premise. Otherwise, what wasn’t “normal” in 2017 could become just another “national security” policy, even if there’s another occupant of the Oval Office come 2021.