This is the third installment of the ‘Things you should know’ series by contributor Indy V. Sybull. It is written to be short, in-depth, and at times, off-color, and no offense is intended. Enjoy!
On September 24, 2017, Donald J. Trump, president of the United States, took a third stab at banning Muslims from travelling to the United States, after the Supreme Court (from now on, the Supremes) dropped consideration of Muslim Ban 2.0 as it expired. Muslim Travel Ban 3.0 is a racist, xenophobic tour de force that throws red meat at Donald’s base, but this time it contains just enough reasoning that it might survive the Supremes’ constitutional scrutiny.
The Hail Mary glimmer of hope to kill this racist boondoggle is that the ham-fisted way in which Trump enacted the first two bans is clear enough to get a majority to overturn Version 3.0. We will discuss discuss the history and analyze the most recent version.
Muslim Travel Ban 3.0
First things first. Muslim Ban 3.0 is an Executive Order. The President of the United States, as commander in chief has broad powers in foreign and military policy. Sure, even the worst of the worst, like Richard Nixon or James Buchanan at least had a basic grasp of their job, or had competent staffers doing their job. Our current Commander in Chief has neither.
The Immigration and Naturalization Act gives the President broad powers in determining who can enter and how they can enter the United States. Like the execution of most other broad powers, previous Presidents made sure they had some rational basis for their actions. Donald Trump, on the other hand, does not, and was surprised when the courts laughed his Muslim Travel Ban 1.0 out of the courts. The sullen reality show star-cum-president resorted to his favorite character assassination tool, Twitter to insult and berate the judges who blocked his ban.
On March 2017, Trump tried one more time. This time, the Trump administration did a little more homework, removed the overt Christian bias of Version 1.0 and made the ban temporary while the Department of Homeland Security studied the situation. The ban was still problematic because the new list inexplicably removed Iraq from the list, despite its glaring security issues, and reports from Trump’s own Department of Homeland Security that the ban would not do anything it promised. Once again, the courts said the ban was unconstitutional, but this time Trump appealed and the Supremes took the case.
The Low Points of Muslim Ban 3.0
What makes Muslim Ban 3.0 worse than the other versions is that it combines a lot malice with a dash of competence. This time around the Muslim Travel ban has four things the two prior ones did not have.
- It has a basis in some reasoning. Muslim Ban 3.0 uses an analysis that at least follows some logic. The countries added on the list, while still an odd grab bag of places, included (officially) atheist North Korea, and majority-Christian Venezuela to the list of places where travelers from these countries are banned. We may disagree on whether or not there rational justifications for banning travelers from Yemen while allowing those from Saudi Arabia to enter the United States, but a judge may find a way to overlook them and find that the Trump made a valid case and uphold the newest iteration of the ban.
- It caters its policies to each country in the list differently. Muslim Ban 3.0 attempts to treat each country differently. In the case of Venezuela, it is only high government officials that are banned from coming from the United States, while in the case of Syria, the ban recognizes that there is a major civil war, while in Chad it recognizes the on-going security cooperation with the United States. By making each country subject to different standards based on Homeland Security assessments on “the kinds of information required from foreign governments to support the United States Government’s ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat.” By having parameters that reflect The Trump Administration’s own warped requirements, Muslim Ban 3.0 has a fig leaf against accusations that it is racist.
- Countries can work themselves out of the list. Like the State Department’s Countries that Sponsor Terrorism list, Muslim Ban 3.0 provides a way for the “guilty parties” to get in the United States good graces by meeting requirements in identity management, sharing national security and public safety information, and meeting national security and public safety standards set by the United States. Although these standards are determined by an Administration that loves to hate “the usual suspects”, it once again provides a system that looks rational and provides a system for countries to get back on the United States’ good graces.
- Allows for case by case exceptions. Another fig leaf in this monstrosity is that it allows nationals of the banned countries that have worked, studied or have been engaged in a long-term activity in the United States, have family in the United States, or have worked for the United States government to enter the US. Of course, the decision is in the hands of your friendly neighborhood ICE officer or an overworked consular officers having using his discretion in determining that banning a particular foreign national does not pose “undue hardship (whatever that means)”, that entrance does not pose “a threat to the security and public safety of the United States”, and “serves the national interest”. So in other words, yes there are exceptions. The guidelines are broad enough that it could depend on mere luck or whether or not the official is having a bad day.
The Legal Battle
The American Civil Liberties Union (ACLU), the Council on American Islamic Relations (CAIR), and the Attorneys General of New York, Washington, California, Maryland, Massachusetts and Oregon have jumped into the fray once again. The ACLU argues the following points:
- It is still a Muslim Travel Ban. Adding Venezuela and North Korea is a distraction. The travel ban only applies to Venezuelan government officials while the amount of North Koreans allowed into the United States with non-diplomatic visas is so small that it is laughable to include the country in the list. Sudan left the list after some friendly prodding from the United Arab Emirates (where Trump previously had business interests) to remove it from the list in exchange for Sudanese troops in the Saudi-Emirati coalition fighting in Yemen. Somalia, which according to Trump’s own Executive Order is meeting the United States’ own visa requirements is has too heavily Muslim to let their citizens to come into the United States. While the new additions (Chad, Venezuela, and North Korea) shows that there is some rationale, the ACLU argues that it disproportionately affects citizens of Iran, Libya, Somalia, Sudan, and Syria, including those seeking green cards to get reunited with their families living in the United States.
- Trump’s own big mouth shows Muslim Ban 3.0 violates the First Amendment. The fact is that Donald Trump made no secret that he wanted no more Muslims in this country and used Islam as convenient foils for his racist tirade. This track record makes it easy to prove intent that this is a violation of the Establishment (freedom of religion) Clause in the First Amendment. That Muslim Ban 1.0 was so naked in its anti-Muslim animus, and Trump himself called Muslim Ban 2.0 “a watered down” version of the original discredited one, shows that version 3.0 is a thinly veiled attempt to enact a new Muslim travel ban with some cosmetic changes, according to the ACLU.
CAIR also filed a lawsuit in the Federal District Court for Southern Maryland against Muslim Ban 3.0. Their lawsuit raises the following points:
- It is a thinly-disguised Muslim Ban. They repeat the same argument raised on Muslim Bans 1.0 and 2.0 pointing out that the national security concerns raised in this Executive Order are window dressing. They point to the ruling on the Ninth Circuit’s decision in the case of Hawaii vs. Trump as basis that Muslim Ban 3.0 is just as Islamophobic as its predecessors. Although the administration found that 47 countries proved inadequate in using acceptable vetting procedures in cooperation with United States authorities, only eight were singled out for the ban and out of the eight, six are Muslim majority countries. Adding North Korea (which comprises a tiny sliver of all the entry visas to the United States) and Venezuelan officials, CAIR argues, shows that this is a Muslim Ban in drag and that banning Muslim majority countries without any national security basis shows the racial animus towards the Muslim community is still very present on Muslim Ban 3.0. The fact that 138 million citizens of primarily Muslim countries represent 85% of the people banned entry into the United States shows that it is a Muslim Ban.The fact that the Department of Homeland Security has demonstrated that there have been no terror attacks from nationals of the countries banned on this and previous Muslim Bans shows that this is specifically targeted towards Islam. Senior Trump adviser (and professional provocateur) Stephen Miller said that the changes on Muslim Ban 2.0 (and accordingly 3.0) are cosmetic in nature and that the Administration’s policy still stands.
- Violates the First Amendment Establishment Clause. The Establishment Clause is this:
“ Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof…”
In plain English, Congress cannot declare a national religion or tell someone they cannot practice their religion freely. This is the part of the Constitution Donald Trump loves to quote when he defends bakers that refuse to sell wedding cakes to gay couples. Well you know what? CAIR argues, Trump’s travel ban is a clear violation of that very clause. The fact that this ban singles out Muslim countries disfavors Islam over other religions. Trump’s own statements are once again submitted as evidence of violating this section of the Constitution.
On July 24, 2016 Donald Trump said in an NBC interview that “People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim…And I’m OK with that, because I’m talking territory instead of Muslim.” He also said in an interview with CNN Trump said that “Islam hates us [The United States]” and on December 13, 2015, during a Fox News interview, Trump was asked if his campaign promise to implement a Muslim Ban would apply to a Canadian businessman who is Muslim. His response equated Islam to a disease and said that its followers were sick, disease-ridden people. Specifically, Trump stated: “There’s a sickness. They’re [Muslims are] sick people. There’s a sickness going. There’s a group of people that is very sick. These statements are going to be central in CAIR’s attacks against Muslim Ban 3.0.
- It is cruel because it keeps families separated. CAIR is suing on behalf of plaintiffs Dr. Eblal Zakzok, Sumaya Hamadmad, Fahed Muqbil, and three unidentified plaintiffs. All of them have relatives or spouses living in, or is a citizen one of the affected countries and are awaiting a decision on their visa requests. The Supremes stayed the Ninth Circuit’s order but allowed specifically protected foreign nationals with a “close familial relationship” with a person in the United States. The Department of Homeland Security decided to interpret “close familial relationships” to exclude Granny Aliya or Auntie Fatima, but allow Brother Mahmoud in under the “close familial relationship” rule. The Hawaii District Court cried foul again and said that Granny Aliya and Auntie Fatima are just as close family as Brother Mahmoud. CAIR argues that these parsings show that the ban is designed to keep families apart and its goal is to make is as broad as possible to keep as many Muslims out of the United States is can.
- Violates the Immigration and Nationality and Administrative Procedures Act. The Immigration and Nationality Act protects applicants from being discriminated from receiving and immigrant visa based on their race, gender, nationality, place of birth or place of residence. Muslim Ban 3.0 clearly violates this legal requirement as it bans all arrivals from specific countries. The Trump Administration by enacting the ban was acting in arbitrary, capricious, and an abuse of discretion, or are otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and without observance of procedure required by law. Using that specific language means that Trump and his cronies are violating the Administrative Procedures Act. Trump’s new vetting system is ham-fisted and disposes of the extensive and complex vetting Congress established.CAIR asks why Somalia, which met the Administration’s security standards is in Muslim Ban 3.0, while Iraq, which the Administration concedes does not meets its standards, is not. Sudan’s mysterious disappearance from the list and Chad’s addition are similarly unexplained. This shows that there is no rhyme or reason to the ban, and thus it is in violation of the Administrative Procedures Act. Also, certain visas (like tourism and business) are banned while student visas are allowed, once again showing that the Administration is acting in a fashion that has no rationale except what Trump feelings, once again violating the Administrative Procedures Act.
The Indy V. Sybull Take:
Muslim Ban 3.0 is no laughing matter and there may be a strong chance the Supremes will let it stand. Although CAIR and the ACLU make a strong case, and Trump’s mouth and Twitter fingers are his own worst enemies, the fact that it has just enough makeup to make this monstrosity look like a supermodel. A judge just needs some rationale in law or precedent to let this overtly racist attacks to the Muslim community stand. The historical precedents are not good. Roosevelt’s internment policy was upheld by the Supremes in the 1940s. Prior to that in United States vs. Bhagat Singh Thind the Supremes, using a racist rationale that while “high caste” Indians were akin to Europeans, they had intermarried with “inferior” darker skinned Indians and that common sense made Thind non-white. The 1921 Nationality Act continued the racist tradition begun in 1882 with The Chinese Exclusion Act to keep East and South Asians out of the country, which sounds eerily familiar to Trumps racist wishes.
This sad history of using non-whites as menaces to American purity makes this difficult ground to toil. Nonetheless, the resounding smackdown the courts have given to the prior bans are good news. Yet, we cannot let our guard down. This won’t be The Administration’s last attempt to attempt to keep Muslims out of this country. Their strategy is to throw anything out there and refine things until it sticks and gets their racist red meat to their xenophobic base sustained by the Supremes. We must be vigilant and not breathe easily if this ban is found unconstitutional. This bovine is sharpening his horns and pedicuring his hooves as we will have a lot of marching and demonstrating to exorcise this monstrosity against people who pray differently from our American body politic.
The opinions expressed in the section above are mine and do not reflect the policies or views of Indivisible, Indivisible Maryland, or BMore Indivisible.