Trump v. Hawai’i: A Legacy of Discrimination

By Lea Kayali (PO ’19)

On June 26th, 2018, the Supreme Court of the United States handed down a decision on Trump v. Hawai’i, siding with the state on one of the most controversial actions of the Trump presidency: a progression of executive orders on immigration, known colloquially as the Muslim Ban. The decision to uphold the travel ban inspired an uproar among human rights advocates across the country. Dozens of individuals, myself included, flocked to the steps of the Supreme Court in protest of the narrow (5-4) decision. The ramifications of Trump v. Hawai’i will echo through the halls of justice for years, if not decades, ultimately staining history books the same color as Korematsu v United States.

The controversy over the status of Muslims in the United States began well before President Trump entered office. As a nation with a deep history of racial prejudice, exclusionary politics, and state repression, American society has never truly afforded American Muslims full privileges of White Anglo-Saxon citizens. The politics of exclusion are not new, but they have been exasperated under this administration.

During his campaign on December 7th, 2015, then candidate Trump made headlines when he called  “for a complete and total shutdown of Muslims entering the United States until our county’s representatives can figure out what the hell is going on,” saying “we have no choice.” Remarks slamming Muslims and Islam have been characteristic of Trump’s rhetoric since his early days on the campaign, and pervaded into his presidency.

One of Trump’s first acts as president was the “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States”[1] since dubbed the Muslim Ban The Order, which is also referred to as EO-2, temporarily banned US entry for nationals from Syria, Yemen, Sudan, Iraq, Iran, Somalia, and Libya, and indefinitely prevented Syrian refugees from U.S. entry. Importantly, each of these nations had a Muslim-majority. A brief look at the timeline of this Order helps us understand how and why the President is still discussing the ban, and why the Supreme Court ultimately took the case.

The initial ban was immediately challenged. On February 3rd 2017, District Judge James Robart in Seattle[2] froze the ban, only to be overturned days later by the 9th District. In the ensuing entanglement on how to proceed, the Trump administration re-booted the Travel Ban, known now as Executive Order-2. Nine days later, on March 15th 2017, a District court in Hawai’i stayed the ban, later to be blocked entirely in the District Court system. Through the appellate process, the Supreme Court was next to see the case.

In this first round of High Court review, the justices narrowed the capabilities of EO-2, only barring those without a relationship with an American citizen. As articulated in their decision:

“We accordingly grant the Government’s stay applications in part and narrow the scope of the injunctions as to §2(c)… In practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2”[3]

Even though the Supreme Court temporarily extended the ban, the executive order was set to expire, and the Trump administration had to make their next move.

On September 24th, the administration issued a third series of travel restrictions. While the restrictions still focused on Muslim-majority countries, they  also included North Korea, Chad, and Venezuela. This third ban was shot down again by the district court in Hawai’i.[4] Finally, on Wednesday, April 25th of 2018, the Supreme Court heard the case again. This time, the court seemed split on the decision[5]. In June, the final decision was announced. Chief Justice John Roberts led the majority in upholding the ban once and for all.

Nearly two years have passed since the Executive Order which started the debacle. Dozens of court cases have challenged Trump’s immigration policies, and civil rights litigation groups across the country claim the ban is discriminatory and factually baseless[6]. Nonetheless, the Supreme Court upheld the President’s right to ban entire categories of visa applicants under his discretion to uphold national security[7]. Opponents of the ban point out that this decision treads over statute USC §1152(a)(1)(A), which prevents “discrimination against [the applicant] in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”[8]. Furthermore, they claim that the ban is in utter violation of the Establishment Clause of the first amendment, which guarantees freedom of religion.

Therein lies the truly unfortunate outcome of the Supreme Court’s decision. Trump’s rhetoric criminalizes the Muslim community, and I can attest to those effects personally. We feel that we are the labeled undesirables according to the White House. The travel ban enshrines this hatred into law. The SCOTUS decision lets that criminalization and discrimination pass the constitutional test. This is a grave mistake. Like the infamous decisions in Plessy v. Ferguson, Dredd Scott, and Korematsu, the American polity will one day chastise the Court for their failure to check discrimination when they had the opportunity. But for now, Muslims everywhere – from refugees in detainment centers, to Americans awaiting loved ones abroad, to immigrants hoping for a better life – will feel the brutal effects of this court sanctioned discrimination.

[1] https://www.whitehouse.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states-2/

[2] https://www.aclu-wa.org/pages/timeline-muslim-ban

[3] https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

[4] http://abcnews.go.com/Politics/timeline-trumps-battle-courts-travel-ban-alive/story?id=50559798

[5] https://www.politico.com/story/2018/04/25/trump-travel-ban-supreme-court-549224

[6] https://www.aclu.org/blog/immigrants-rights/muslim-ban-what-just-happened

[7] https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf

[8] http://www.aaiusa.org/the_muslim_ban_is_still_not_enough_bigotry_for_the_roberts_court

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