Dangerous Logic at the Border: Religion & Travel Ban

Dangerous Logic at the Border: Religion & Travel Ban
AP Photo/Carolyn Kaster, File

A week after taking office in January 2017, Donald Trump issued Executive Order 13769, "Protecting the Nation from Foreign Terrorist Entry into the United States," suspending entry to the U.S. for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The federal courts deemed this order and a second iteration that followed unconstitutional. A third iteration, Proclamation 9645, issued September 24, 2017, was also challenged in the courts, and in October 2017 a federal district court in Hawaii granted a nationwide injunction barring enforcement. This version placed entry restrictions on the nationals of eight states whose systems for sharing information the President deemed inadequate, resulting in what former Acting Solicitor General and counsel in Trump v. Hawaii Neal Katyal has described as "a ban on foreign nationals' entry to the country using a facially neutral policy that predominantly impacts Muslim-majority nations." The 9th U.S. Circuit Court of Appeals upheld the district court's decision, observing that the Proclamation likely contravened two provisions of the Immigration and Nationality Act, 1182(f) and 1152(a)(1)(A).

The first, 1182(f), authorizes the President to "suspend the entry of all aliens or any class of aliens" whenever he "finds" that their entry "would be detrimental to the interests of the United States," while 1152(a)(1)(A) provides that "no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence." On June 26, 2018, the U.S. Supreme Court reversed the 9th Circuit's decision, ruling 5-4 in favor of the government. With anti-Muslim rhetoric at the highest levels of the U.S. government, including numerous incontrovertible statements by the President himself, how could the majority in Trump v. Hawaii find that the ban is not about religion or religious animus?

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