Justice denied on Trump’s Muslim ban

June 29, 2017

Mukund Rathi looks at the cruel and bigoted reasoning behind the Supreme Court's restoration of parts of Donald Trump's "Muslim ban"--and argues for resistance.

AFTER DONALD Trump's first and second attempts at a Muslim ban were defeated by mass protests and legal challenges, on Monday, the U.S. Supreme Court reimposed key sections of the ban, delivering a major victory to the forces promoting anti-Muslim bigotry.

This third version of the ban targets people from the same six Muslim majority countries as well as the entire U.S. refugee program--but now includes an exception for those with "a credible claim of a bona fide relationship with a person or entity in the United States."

The Court's decision that the ban's supposed benefits to national security outweigh its possible harms is the height of imperial arrogance and cruelty: A message to people fleeing civil wars and sectarian bloodshed that have killed millions that their lives matter less than the remote chance than an American might be killed by a Muslim "terrorist."

Moreover, the Court scheduled full hearings on the second ban for October, by which point the ban will have mostly ended, and so the case will likely be moot. So the nine "justices" both implemented a ban and prevented further legal review of any of the issues.

The nine justices of the U.S. Supreme Court
The nine justices of the U.S. Supreme Court

Meanwhile, immigrants and refugees stuck at borders or in countries wracked by U.S. imperialist violence will bear the brunt of the legal and political uncertainty.

Shamefully, the supposedly liberal justices of the Court not only supported this decision, but also weaseled their way out of taking responsibility by signing their names to it. Instead, the Court released this as a per curiam opinion, a device traditionally used for uncontroversial decisions that are so legally obvious that the justices join in their entirety.

The complicity of these Democratic-appointed justices undercuts the idea that this ruling is the result of Trump's recent appointee Neil Gorsuch breaking a Court deadlock. And it's further evidence that we have to fight this new Muslim ban the way we fought previous attempts--through protests that force the legal system to uphold the justice it claims to stand for.

THE SUPREME Court's ruling overturned most of the preliminary injunctions on the second ban imposed by the Fourth and Ninth U.S. Circuit Courts of Appeal, which had found that the challengers against the ban made claims of likely harm that outweighed the national security justifications.

The Fourth Circuit cited the raft of statements by Trump that clearly demonstrated his Islamophobia ("religious animus," in the court's terms), and so found that the national security justification wasn't legitimate.

Neither the Ninth Circuit nor the Supreme Court addressed Islamophobia, but both of the lower courts "balanced the equities" of national security and harm to the challengers, and found that the latter outweighed the former.

But the Supreme Court said that "the equities relied on by the lower courts do not balance the same way" when it comes to "foreign nationals abroad who have no connection to the United States at all."

For one, the Court said, denying them entry does not "burden any American party by reason of that party's relationship with the foreign national." Secondly, there's no evidence of "any legally relevant hardship on the foreign national himself." Finally, the "Executive's authority" in enforcing national security law is at its "peak when there is no tie between the foreign national and the United States."

By giving greater weight to the "Executive's authority" and ignoring the Fourth Circuit's concerns over "religious animus," the Supreme Court continued its long history of deference to the "national security card." As Danny Katch put it at SocialistWorker.org:

This is a pretty major loophole in the Constitution's vaunted system of checks and balances. It's like finding out a secret rule in the Rock Paper Scissors game--where Rock always wins if you just shout "National security!" at the same time.

The Court's dismissal of human beings who have suffered through the horrors of imperialist wars and crises is atrocious. As National Immigration Law Center legal director Karen Tumlin told the New York Times, "It's repugnant to our values that they might be treated differently because of where they are from."

But while those are the values of solidarity, they are not the laws of capitalist nations and borders. The Court has plenty of legal precedent to inhumanely deny the worthiness of millions of people around the world.

The most reactionary justices--Gorsuch, Clarence Thomas and Samuel Alito--dissented to criticize even the "bona fine relationship" exception, saying that the second ban should have been completely restored because the exception will "burden executive officials with the task of deciding" whether such a relationship exists--and that a "flood of litigation" might result over the definition of "bona fide."

In fact, this executive discretion also provides leeway for the racial profiling and Kafkaesque nightmares that have left so many immigrants and refugees in limbo. But those concerns didn't find their way into either the Court ruling or the dissent.

The "bona fide" definition includes family or some other pre-existing and formal relationship with a U.S. company or organization, such as a student admitted to a university. The purpose of this language is to exclude relationships formed solely "for the purpose of evading" the executive order.

Here's a question that protesters and lawyers will have to pose to the legal system in the coming months: Does having your home, family and country repeatedly destroyed by the U.S. government, along with its allies and proxy armies, over the course of decades qualify as a "bona fide" relationship?

IN EFFECT, the Supreme Court has unilaterally created a new law, since this ban significantly changes the second version--though it's no less a Muslim ban--and will likely not even be subject to further legal review during or after its months of existence.

While "bona fide relationship" is a common concept in immigration law--for example, to obtain a green card based on marriage, the marriage must be "bona fide"--by importing the concept to the Muslim ban, the Court has effectively created its own new version.

The Court justifies this by linking the concept to the second ban's "case-by-case waiver system" for certain types of individuals, including those with family, business and school relationships. But this was "case by case" and hence at the discretion of Customs and Border Patrol officers--the Court has converted it into a mandatory line.

It's worth noting that this is an improvement from the second ban--though, of course, not from the situation before Monday, which was no ban at all. ACLU deputy legal director Cecilia Wang told the New York Times that Trump's self-vindication after the ruling was "based on alternative facts" because, as the Times paraphrased her, "the opinion meant that the ban would not apply to many people while the court case proceeds."

If the dissent is to be believed, however, the breadth of the Supreme Court's third ban is unclear and subject to further litigation. While the reactionary justices are concerned with helping the government get a "fair" shake, we should be concerned with the effect of this uncertainty on immigrants and refugees who continue to be stuck in limbo.

For one thing, as Dahlia Lithwick and Mark Joseph Stern explained for Slate, "The order's opacity about what constitutes a connection may allow federal agencies to resolve such close cases against the individual."

Even though the Court converted the case-by-case waiver system into a dividing line, Trump's agencies are still empowered to make the initial decisions about who falls on either side of the line. And even once "bona fide" is defined, a person must still make a "credible claim" of such a relationship, the judging of which is again up to the federal agencies.

At a more general level, the constant changes in immigration policy wrought by Trump and the courts are leaving its victims in a precarious limbo. "Ambiguity and vagueness inevitably help the president and not the people stranded at borders waiting for it all to be worked out at the courts," write Lithwick and Stern. "Each time the rules change, Trump claims a win and travelers are uncertain."

GOING FORWARD, the Court's third ban will continue for the same period as the second--90 days for the six Muslim majority countries, and 120 days for the refugee program.

Those months are supposed to be when executive officials undertake internal reviews of admissions policies to decide how to proceed. The Fourth Circuit blocked even this internal process from taking place, but now the Supreme Court has restarted the clock.

However, the Court scheduled full hearings on the second ban for October--remember, the third ban is meant to be a partial injunction on the second, which exists until the second version's legality is fully discussed. By this point, the 90 days and most of the 120 days will have run out, so the ban will be ending, and the case will likely be declared moot.

This means the Court has effectively sidestepped the legal questions raised by the Muslim ban, as the Economist explained:

[T]he administration gave them an opportunity to avoid addressing the ban more quickly, and they took it. Look at this parenthetical from today's order: "(The Government has not requested that we expedite consideration of the merits to a greater extent.)" The implication is clear: we could have held a special hearing in July--an unusual but not unprecedented move--but nobody asked us to.

And lest we breathe a naïve sigh of relief about the ban ending in October, it's worth remembering that Trump transitioned from the first to second ban to create a policy more amenable to the judiciary. He now has time to repeat this strategy.

"By October, the ban will have expired, and the review should be complete," warned the New York Times editorial board. "And by then Mr. Trump might conceivably have developed a factual basis for a policy that continues to bar people from certain countries, which would trigger a whole new round of litigation."

In summary, the Court has both issued a new Muslim ban and given cover for Trump to continue devising racist immigration policies. Meanwhile, immigrants and refugees will remain stuck between the rock of countries wracked by Western imperialism and the hard place of those same Western countries shutting them out on the basis of Islamophobia.

DONALD TRUMP and his Islamophobic allies obviously deserve the lion's share of the blame for this disgraceful ban, but it's important to note the complicity of the Court's supposedly liberal justices, who supported the ban, but didn't sign their names to it.

The Court released its opinion as "per curiam," which literally means "by the court" and does not declare authorship or individual signatures. This device was traditionally used, according to Ira Robbins at SCOTUSblog, "to signal that a case was uncontroversial, obvious and did not require a substantial opinion."

But this changed, Robbins writes. "Beginning in the mid-1900s," says Robbins, "the Court expanded the role of the per curiam, fashioning it as a strategic device to resolve time-sensitive cases quickly, as a protective shield from controversial issues, and as a way to make new law by indirection."

Indeed, the dissent from three conservative judges shows how meaningless "per curiam" has become. Moreover, it shows that the liberal justices--Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor--purposefully chose to join the opinion in full (while hiding their names) rather than dissent from any part.

"Public accountability through the disclosure of votes and opinion authors puts the judge's conscience and reputation on the line," said then-Circuit Judge Ginsburg in 1990. Ginsburg has in recent years become an unlikely liberal cult hero, but there's nothing "notorious" or "heroic" about hiding behind an antiquated legal device.

IT'S ALSO important to see how even some of the legal strategies used to challenge the ban failed to fully challenge the Islamophobia at its core.

Particular plaintiffs were chosen to challenge the ban, and the Court used them to justify its criteria of "bona fide relationship" in dividing worthy and unworthy immigrants and refugees. This use of the respectable plaintiffs as the dividing line reflects the liberal Islamophobia of "good Muslim/bad Muslim."

As Brian Sullivan argued back in February in SocialistWorker.org about the challenge to the first ban, this dichotomy was present in most of the challengers' legal strategies to begin with.

The ACLU chose plaintiffs who it thought would seem more sympathetic, even commendable, and highlighted their patriotic bona fides. Though this might be best suited to winning a legal case, a movement to challenge anti-Muslim bigotry needs to reject the idea that the U.S. government has the right to choose who the "good" and "bad Muslims" are.

The Supreme Court found that "the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national [who lacks a relationship with the U.S.] himself" and that "the facts of these cases illustrate the sort of relationship [with the U.S.] that qualifies."

One reason the Court's findings were limited was that the facts and arguments below were limited: the challengers, such as Hawaii and the International Refugee Assistance Project, never chose plaintiffs, stated facts or made arguments regarding foreigners without a qualifying relationship to the U.S.

The legal teams for those challengers can reasonably argue that they picked what they thought was the most effective legal strategy, and there's no doubt that lawyers in many organizations have worked very hard to fight these bans.

However, the law is not sacred, and it is not apart from politics. Overturning the Muslim ban will require a mass fight against all forms of Islamophobia, and any effective legal strategy must flow out of that fight. As Rob Hunter argued in Jacobin:

Organizing large coalitions and confronting powerful institutions should be at the forefront of democratic politics--not judicial subtlety and clever interpretations of superannuated texts.

Durable abortion rights are more likely to be secured through a broad coalition demanding universal access to single-payer healthcare than through appeals to protect the legacy of Roe. The reform of racist and violent policing through judicial interpretations of the Fourth Amendment is meaningless in the absence of the political will to bring paramilitarized cops to heel. Confronting patterns of gross inequality with respect to gender and sexuality is a project best pursued through intersectional alliances, not disputes over constitutional doctrine.

It was mass protests at airports across the country that turned the tide against Trump's first attempt at an Islamophobic travel ban. The fight against this new ban may require new tactics and longer-term organizing, but it will require the same outpouring of grassroots solidarity and popular resistance to fight this gross injustice that has now been upheld by the highest court in the land.

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