The Supreme Court is preparing to weigh in for the first time on the constitutionality of President Donald Trump’s travel ban — which, due to the curious list of countries it includes and Trump’s own rhetoric on the matter, has been widely perceived as an attempt to ban Muslim immigrants from coming to the United States. Now, experts seem to agree that the highest court’s decision will have a major impact on the question of whether religious discrimination will be deemed legally acceptable in the United States.
“Here the United States has really unique conceptions of religious liberty that are broader than most any other country in the world,” Gadeir Abbas, an attorney for the Council on American-Islamic Relations (CAIR) in Washington DC, told Salon. “And the establishment clause prohibits any part of the federal or state government from wielding government authority in a way that’s aimed at stigmatizing Muslims and demonizing our faith. So the Supreme Court could look at the cornucopia of evidence that Donald Trump’s Twitter account and other statements from various administration officials which make it really clear that the purpose of the Muslim ban was to express animosity toward Muslims and to in fact increase the level of anti-Muslim sentiment in the country.”
He added, “And the Trump administration has succeeded in doing that.”
Kica Matos, a spokesperson for Fair Immigration Reform Movement (FIRM), had similar observations.
“What we’ve seen is this horrific intentional trajectory of anti-immigrant, anti-Muslim policies that have been implemented with a frightening level of aggression and speed and without much attention to the constitutionality of these policies that he’s moving forward,” Matos told Salon.
She also explained that Trump’s various anti-immigrant measures, both against Muslims and against other immigrant groups like Mexicans, had created a climate of fear among many minority communities in the United States.
“There’s a lot of anxiety in the immigration world writ large since Trump has come into power,” Matos told Salon. “I recall that when he was running for office, during his first press conference, he went out of his way to malign Mexican immigrants. He called them ‘rapists’ and said that they are ‘criminals,’ and shortly after that he went on a rampage against Muslims and said that if he were a president, he would impose a complete and total ban against Muslims entering this country. And then after he became president, what was one of the first things that he did? He imposed the first of three travel bans prohibiting Muslims.”
The path that brought Trump’s Muslim ban to the Supreme Court has been a long and winding one. There have been three different versions of the ban — the first one being issued shortly after Trump took office — and each has been found by various lower courts to have been invalid because they were motivated by animus toward Muslims, according to The Washington Post. Two of the courts that took the most aggressive stances against the Muslim ban were the US Court of Appeals for the 4th Circuit, which found that it violates the First Amendment’s guarantee against religious discrimination, and the US Court of Appeals for the 9th Circuit, which Trump tried to circumvent by enacting a second version of his plan (which was ultimately stopped by two regional court of appeals).
“Both the 4th and the 9th circuit have concluded that the Muslim ban is illegal for a variety of reasons,” Abbas told Salon. “The 9th circuit concluded that the Muslim ban is illegal primarily because it engages in discrimination based on an immigrant’s country of origin, which is something that Congress prohibited decades ago. And so the US used to have a very racist immigration system, the Trump administration’s Muslim ban is attempting pretty transparently to go back to a racist immigration system and the Supreme Court could say that Congress has already dealt with this type of issue and said that you can’t discriminate over who gets a visa and who doesn’t get a visa based on what country they’re from. That’s something that the 9th circuit emphasized in its ruling that the Trump administration should be forbidden from implementing its Muslim ban.”
He added, “In the 4th circuit, they did something a little different. They focus on the constitutional right of the people that are challenging the Muslim ban rather than the statutory rights.”
That said, there is also the chance that the Supreme Court could uphold the travel ban in order to protect the president’s prerogative to protect Americans’ national security as he sees fit.
“The scope of this court’s decision here will have an impact on this (and future) president’s ability to protect our national security interests as he (and Congress) sees fit. At the end of the day, it is not the role of the judiciary to intercede in such matters, and this court should clearly say so,” explained a brief filed by national security experts supporting Trump.
Solicitor General Noel J. Francisco made a similar argument to the Supreme Court.
“The Constitution and acts of Congress . . . both confer on the President broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the nation’s interest,” Francisco wrote.
The biggest sign that the court may plan on ruling in favor of the Trump administration is that they issued a stay of a lower court’s injunction back in December, allowing one of the Muslim bans to take effect until they had a chance to review the case. Josh Blackman, a professor at the South Texas College of Law in Houston, has said that there has only been one other occasion when the John Roberts court issued a stay that wasn’t ultimately followed by them reversing the lower court’s opinion.
He also argued that this might be a good thing.
“If the court rules here for President Trump, I don’t see that many lingering problems; I don’t know that we’ll ever have a president again like Trump, who says such awful, awful things on a daily basis,” Blackman told the Post. He added, “I worry much more if they rule against President Trump, and they give courts [a] green light to parse campaign statements and the like, this could potentially hamstring not just this president, but also future presidents.”
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