The Muslim Ban violated the Constitution just as Japanese Internment did. Both orders were unconstitutional because they were religiously and racially discriminatory. Discrimination the Constitution explicitly prohibits in the Establishment Clause and Equal Protection Clause. In fact, the Muslim Ban damaged national security and violated American ideals. It was morally reprehensible and a stain on our country’s history. It was wrong.
Background on the Muslim Ban
In 2015, in a xenophobic panic, then Republican Presidential candidate Donald Trump called for a “total and complete shutdown of Muslims entering the United States.” It would become known as the “Muslim Ban.”
On Friday, January 27th, 2017, seven days after Trump was inaugurated, he acted on his pledge to ban Muslims. Executive Order 13769 did not explicitly mention Muslims but it barred foreign nationals from seven Muslim majority countries (Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen) regardless if those individuals held valid legal visas. Included in the EO was a ban on Syrian refugees and a cut to the number of refugees permitted into the U.S. by half. An arbitrary fraction like something from a Marvel villain.
Executive Order 13780, issued on March 7th, 2017, sought to address the previous EO’s legal shortcomings and strategize the Muslim Ban to pass constitutional muster. Given that the Supreme Court seated five conservative justices, the Trump Administration did not strategize to convince all nine Supreme Court justices, they only needed to convince five conservative justices already on board. The legal strategy to defend the Muslim Ban only needed to give those five justices an excuse to permit this religiously discriminatory order. A political strategy highlighting the partisan divide of what is supposed to be an independent judiciary.
The Parallels Between Sanctioning Japanese Internment and Sanctioning the Muslim Ban
In 1942, in a xenophobic panic, the United States forcibly removed 120,000 Japanese Americans from their homes, property, jobs, schools, and lives and forced them into internment camps. (A “precedent” both Trump and one of his PACs signaled support for). The order did not explicitly mention Japanese Americans by race or ethnicity; but those ordering and executing it knew full well who to racially target. This unconstitutional bigoted forced seizure was facilitated, organized, and executed by the U.S. Army and sanctioned by the U.S. Supreme Court in Korematsu v. United States.
In Trump v. Hawaii, the Supreme Court sanctioned the Muslim Ban.
All five men on the majority who sanctioned the Muslim Ban in Trump v. Hawaii, just as all six men who sanctioned Japanese Internment in Korematsu, shared no cultural, ethnic, nor religious connections/sympathies for those the orders racially targeted.
In Trump v. Hawaii, the five majority conservative justices deliberately excluded evidence of Trump’s racial and religious animus towards Muslims and Africans. This was a strategic move to shield their decision. Had the Supreme Court taken into evidence Trump’s racism, there would be no doubt the conservative justices would be forced to strike down EO 13780 because of its racist intent.
Instead, the five majority justices leaned on a judicial principal that defers on “national security” issues. The Trump Administration cited “national security” as an excuse to execute Trump’s campaign promise to ban Muslims despite former national security officials citing the harm a Muslim Ban would actually do to national security in a amicus curiae (friend of the Court) brief.
Just as in Korematsu, the sanctioning justices ignored their duty to scrutinize racist orders. Both “national security concerns” of the Muslim Ban and Japanese Internment were exaggerated and riddled with falsehoods and strategic lies to cover their discrimination. The government lied to justify Japanese Internment. The government lied to justify its Muslim Ban.
Justice Sotomayor saw through these strategic lies and brought them directly into light in her dissent (Justice Ginsburg also joined this dissent). Her dissent condemned the xenophobia of the Muslim Ban, President Trump, and those who sanctioned the order. She dismantled every excuse the majority tried to come up with to justify this discrimination highlighting the parallels between this case and Korematsu. And she performed her duty scrutinizing these racist orders.
“Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.” — Justice Sotomayor’s Dissent in Trump v. Hawaii
Meanwhile, in the sanctioning majority, Chief Justice John Roberts made a failed attempt to wash his hands of this sin by overruling Korematsu in the Court’s opinion. Justice Kennedy also made a failed attempt to appear considerate of religious freedom in his concurrence by simultaneously attempting to extort about the importance of religious freedom yet use his power and vote to sanction the Muslim Ban with four of his other colleagues. They all failed. Just as our Supreme Court failed in Korematsu.
Both EO 13780 (Muslim Ban) and EO 9066 (Japanese Internment) did not mention any of its targets by race, religion, or ethnicity. These were deliberate attempts to shield these religious and racially discriminatory orders from judicial scrutiny. Had the authors of these racist orders been honest with their intentions and incorporated their ethnic targets, the Supreme Court would be forced to apply a test of strict scrutiny, a test both Japanese Internment and a Muslim Ban would fail.
You would think a Chief Justice who once said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” would heed his own advice. But if I could borrow what Chief Justice Roberts said about Korematsu and use his own words against him: Trump v. Hawaii was gravely wrong the day it was decided, will be overruled in the court of history, and — to be clear — “has no place in law under the Constitution.”
On January 21st, 2021, on his first day in office, President Joseph R. Biden repealed the Muslim Ban fulfilling a promise and an oath he made to uphold American ideals and defend the Constitution.
I. I use the word “sanctioned” because the Court is supposed to act as a “check and balance” on the Executive branch. So, when the Executive branch executes an unconstitutional policy, and the Judicial branch does nothing to stop it, then the Court has “sanctioned” this unconstitutional behavior.
II. I ignored the conservative argument that the judiciary should not limit the Executive’s powers on immigration control. Why? Because there are plenty of cases and examples of the Court stopping the government in what it does because the Constitution either does not explicitly allow it or because it is unconstitutional. What is wrong is wrong.