Third time is the harm for the Muslim ban

June 29, 2018

The Supreme Court legitimized the racism inherent in Trump’s travel ban by reversing the logic it used just weeks ago for a different reactionary ruling, explains Mukund Rathi.

THE SUPREME Court has upheld the third version of the Muslim ban, delivering a sordid victory to President Trump and the white supremacist movement.

The ban, among other things, prevents almost all travel to the U.S. by people who are from five Muslim-majority countries — Iran, Libya, Syria, Yemen and Somalia — all of which are being targeted by other U.S. imperialist policies.

Chief Justice Roberts, joined by the other conservatives and Kennedy, effectively ruled in Trump v. Hawaii that President Trump is in the clear so long as he cries “national security!” and avoids writing “ban all Muslims” in the actual law.

Thousands of pro-immigrant protesters flock to JFK Airport in New York City
Thousands of pro-immigrant protesters flock to JFK Airport in New York City

Those challenging the ban made their case against it on both constitutional and statutory grounds, but a majority of Supreme Court justices rejected their arguments. The court held that Trump acted within the presidency’s power on immigration and national security policy, with broad deference granted to laws enacted by Congress and constitutional precedents established by prior judicial rulings. As a consequence, the Court declined to scrutinize Trump’s actions as being the result of discriminatory “religious animus.”

This is a horrible decision, but it also illustrates the ways in which the judicial system routinely promises equality before the law while simultaneously undermining it. The judicial system has thus closed its eyes to the atrocities of U.S. imperialism and the parallel rise in Islamophobic discrimination.

Historically, the Supreme Court has led the way in this regard, infamously upholding the internment of Japanese-Americans during the Second World War. That ruling — Korematsu v. United States — now has its modern day analogue in Trump v. Hawaii.


IF THE First Amendment prevents religious discrimination, how can Trump legally get away with a Muslim ban? Because the Supreme Court doesn’t take Islamophobia seriously. Discrimination against Muslims is closely tied to U.S. imperialist projects, but the Supreme Court refuses to “interfere” in such matters on the basis that the conduct of war remains the prerogative of the executive branch.

In the majority opinion, Chief Justice Roberts recounts this history with more or less accuracy. Though for him, this longtime “deference” to “national security concerns” provides the legal reasoning to allow even greater range of motion to the White House.

In Sale v. Haitian Centers Council, for example, the Supreme Court upheld a naval blockade established by President Clinton to block immigrants who were fleeing Haiti after a military coup. In Holder v. Humanitarian Law Project, the Court allowed the Obama administration to prosecute human rights groups for providing material support to foreign “terrorist” organizations (as designated by the State Department), such as the Kurdistan Workers’ Party, in legal and civil advocacy.

As precedent for Trump’s ban, Roberts cited two travel bans by Obama: one in 2011 banning individuals targeted by the UN Security Council “until such a time as the Secretary of State” deems appropriate; and another in 2014 banning Russian nationals working in various industries as a response to Russia’s “annexation of Crimea and its use of force in Ukraine.”

In short, the “lesser evil” imperialism of Democratic administrations legally has opened the door to the “greater evil” of Republican ones.

Roberts particularly focuses on the older case of Kleindienst v. Mandel, which upheld the Nixon administration’s denial of a visa to Belgian Marxist economist Ernest Mandel. The motivation was obviously ideological, but the Court ruled that so long as the executive branch gave a “facially legitimate and bona fide” reason for such a visa denial, judges must not “look behind the exercise of that discretion” nor weigh it “against the asserted constitutional interests.” So since Trump raised the cry of “national security” about these “dangerous” countries, he is in the clear.


BUT GIVEN Trump’s open bigotry against Muslims, can anything else be taken seriously as a “bona fide” reason?

Violations of the First Amendment are supposed to trigger “heightened scrutiny” by the judicial system. The Supreme Court, however, privileges the government’s imperialist interests over constitutional rights. So Roberts agreed to consider evidence of bigotry, but argued that it would be proper to “uphold the policy so long as it can reasonably be understood to result from” national security justification.

The concept of “reasonableness” is central to bourgeois law, giving courts the flexibility to apply bourgeois ideology to resolve legal conflicts. For example, Roberts repeatedly points out that Trump’s “national security” justifications supposedly arose out of his cabinet’s “worldwide review” of various countries’ immigration policies.

To Roberts, it is basically decisive that “the text says nothing about religion” and that the ban includes Venezuela and North Korea, which are not Muslim-majority.

To the average person, this is obviously window dressing, and the cabinet’s “review” is a joke since Trump has been loading up his administration with figures who share his anti-Muslim bigotry.

But the government’s lawyer insisted that cabinet members are “duty-bound to protect and defend the Constitution” and would “refuse to comply” with an order from Trump to “find a legal way” to enact the Muslim ban.

The Court majority implicitly accepts this logic, and Justice Kennedy does so explicitly in his concurring opinion, defending the majority’s extreme deference on Trump’s ban by saying that “the oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct.” Seriously?

Moreover, the Supreme Court effectively teed up this victory for Trump a year ago in June, when it partially upheld his second Muslim ban (with no dissent from any of the liberal Justices).

It scheduled full hearings on the second ban for that October, by which point the ban had ended and so the case was moot. This also gave the Trump administration time to finish the sham “worldwide review,” and as the New York Times editorial board correctly predicted, gave them “a factual basis for a policy that continues to bar people from certain countries.”


THE HYPOCRISY of bourgeois legal standards, whether based on “judicial deference” or “reasonableness,” is thrown into sharp relief by contrasting this case with the recently decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the Supreme Court ruled that Colorado’s civil rights officials discriminated against an anti-gay baker while investigating him for his refusal to sell a wedding cake to a gay couple.

In the majority opinion, Kennedy blasted two commissioners for brief comments they made about how religion can be improperly used to justify discrimination. So while it is “reasonable” to look the other way on Trump’s sordid history of Islamophobia, the Court feels quite differently about the supposed oppression of conservative Christians.

Liberal Justices Breyer and Kagan, who joined the majority in Masterpiece, cite it in their dissent in Trump v. Hawaii. They suggest that the former case’s scrutiny of supposed religious discrimination should apply as precedent to the latter’s clear religious discrimination. This naively privileges the formality of legal rules over the politics that undergird them.

Masterpiece was the Supreme Court’s adoption of the false narrative that conservative Christians are under attack and need legal protection from “the left.” If anything, this is actually harmful to those challenging Islamophobia.

Similarly, while Justice Sotomayor’s dissent in Trump v. Hawaii is refreshingly biting, it opens with the politically disarming assertion that “the United States of America is a nation built upon the promise of religious liberty.”

All of this gets to the critical importance of how our legal arguments must reflect the actual politics of our social movements. This is the only way to bend ruling-class legal institutions to our will, and it has consistently been lacking in the litigation against the Muslim bans.

In this case, the State of Hawaii’s primary argument was not that Trump enacted an illegal Muslim ban, but that he acted outside the deference provided to him by Congressional statute. But when massive numbers of people protest at the airports and in the streets against the Muslim bans, they are fighting with the politics of solidarity, not statutory interpretation. In fact, even Sotomayor disregards the “plaintiff’s complex statutory claims” to focus her dissent on the issue of anti-Muslim discrimination.

The lawyers spent the vast majority of their time bickering about how to read the Immigration and Nationality Act, rather than challenging the formally “color-blind” language of racist laws. In fact, Hawaii’s lawyer accepted the government’s ridiculous ideas of legal formality, conceding in oral arguments that “if tomorrow [Trump] issues a proclamation saying he’s disavowing all those [anti-Muslim] statements, then the next day he can reenter” the ban.


OUR SIDE has been suffering major defeats, and with Kennedy’s looming retirement, Trump is poised to appoint another Justice to the Supreme Court who can help deliver more legal victories to the white supremacist movement.

But it’s worth remembering: the Roe v. Wade ruling that made abortion a constitutional right was decided in 1973, after anti-choice bigot President Nixon appointed four justices to the Supreme Court (replacing liberals like Earl Warren). One of those justices wrote the Roe majority opinion and two of them joined it.

Crucially, the decision followed massive mobilizations by the women’s liberation movement, including hundreds of local and national protests in the years leading up to it.

Obviously the Court’s decisions track the politics of the individual justices, but they also are shaped by the politics and strength of social movements. Building those movements — and the organizations necessary to sustain such movements between high points in the struggle — remains the primary task confronting the left today.

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