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Analysis

Fighting the Muslim Ban: Three Years and Counting

The lawsuits against Trump’s unconstitutional travel ban are still going strong. Next stop: federal appeals court in Virginia.

Janu­ary 27 marks three years since Pres­id­ent Trump issued the original Muslim Ban, which disrup­ted the lives of thou­sands of people around the world and triggered mass protests around the United States. Since then, the ban has been through three iter­a­tions, all of which have been met with legal chal­lenges on the grounds that the policy was motiv­ated by animus toward Muslims.

The policy now bars most people from five predom­in­antly Muslim coun­tries — Iran, Libya, Syria, Somalia, and Yemen. Despite the govern­ment’s claims that the ban was based on “national secur­ity” concerns, the true discrim­in­at­ory and uncon­sti­tu­tional reas­ons behind it have been evid­enced by, among other things, numer­ous anti-Muslim state­ments by Trump before and after he was elec­ted.

In each version of the ban, multiple federal courts have agreed and ordered the policy stopped in its tracks. Some of these lawsuits remain ongo­ing, includ­ing one filed by the Bren­nan Center that is set for a hear­ing in federal appeals court on Tues­day. The govern­ment has appealed a district court judge’s rejec­tion of its attempt to have the case dismissed, and the outcome could give us a chance to conclus­ively prove in court — and estab­lish for the histor­ical record — that the ban was the product of preju­dice, not proof. Next week’s argu­ment before the Fourth Circuit Court of Appeals comes on the heels of Pres­id­ent Trump’s confirm­a­tion that he plans to add new coun­tries to the ban list.

So far, the most well-known case chal­len­ging the Muslim Ban is the one that the Supreme Court decided in June 2018. The Court ruled then that the third and most recent edition of the ban could take effect as lower courts considered whether it was appro­pri­ate for litig­a­tion to continue.

The decision in the case, Trump v. Hawaii, did not defin­it­ively affirm the ban’s legal­ity or consti­tu­tion­al­ity. The justices were only review­ing a prelim­in­ary injunc­tion that had been issued against the govern­ment. The injunc­tion had put the policy on complete hold pending an ulti­mate decision on the merits.

Before the ruling, chal­lenges to the ban asked courts to determ­ine whether the govern­ment’s action was “for the purpose of disfa­vor­ing a reli­gion.” Unfor­tu­nately, the Court ruled 5–4 that the pres­id­ent’s author­ity in the spheres of national secur­ity and immig­ra­tion meant it needed to be defer­en­tial to the govern­ment. Going forward, plaintiffs would have to demon­strate that the ban could not be explained by anything other than anti-Muslim bias.

In Octo­ber 2018, we refiled a lawsuit to do just that, repres­ent­ing six Muslim U.S. citizens and resid­ents. In addi­tion to the pres­id­ent’s anti-Muslim comments, we offered the court a substan­tial amount of public inform­a­tion that under­mines the admin­is­tra­tion’s false story about the poli­cy’s genesis as a national secur­ity need.

Last year in May, the federal district court in Mary­land ruled that our case could proceed, noting that the we had put forward specific alleg­a­tions to demon­strate that the ban “is not ration­ally related to the legit­im­ate national secur­ity and inform­a­tion-shar­ing justi­fic­a­tions” iden­ti­fied by the admin­is­tra­tion. The court also found it likely that the policy “was motiv­ated only by an ille­git­im­ate hostil­ity to Muslims.”  

The Trump admin­is­tra­tion’s plan to expand the travel ban list to addi­tional coun­tries only serves to further under­cut its bogus national secur­ity argu­ment. That’s because the addi­tions will reportedly be made on or near the exact date of the anniversary of the first ban. If people from these coun­tries actu­ally posed a secur­ity threat, the govern­ment would be taking action as soon as possible, not at a time that’s polit­ic­ally expedi­ent.