The Muslim and Refugee Ban at Two

Posted by Ryan Suto on January 25, 2019 in Blog

As we approach two years since President Trump’s Muslim and Refugee Ban policy first took shape, it is important to look at both how we arrived at such a dark moment in our history and how directly impacted communities are nonetheless closer to the warm glow of a long-promised equal treatment under the law.

During the primary for the Republican nomination for president in the 2016 election several Republican candidates seized onto Americans’ outsized anxiety toward ISIS as a convenient external threat in order to tout hardline national security positions. Not to be outdone in the arms race to the moral bottom, candidate Donald Trump called on the federal government to block all Muslims from traveling to the United States in 2015. This comment followed a long and troubling history of anti-Muslim, anti-Arab, and an increase in xenophobic rhetoric in American politics that is well documented on our site.

In 2016 Trump stated that Muslims have a “tremendous hatred for the United States.” After he was elected president, Trump’s transition team seriously considered the possibility of reviving a database of people in the United States from Muslim-majority countries—reminiscent of the Bush-era NSEERS program and perhaps still to take shape in the form of the National Vetting Center.

On January 27, 2017, one week after Trump was inaugurated as the President of the United States, he issued Executive Order 13769, the first Muslim and Refugee Ban. Chaos ensued across the country and indeed, in airports and among refugee communities around the world. Protesters, lawyers, and politicians crowded airports to display outrage and offer support to impacted travelers. The scenes from those airports hit every screen and doorstep across the country, and turned public opinion against the policy. Judges quickly blocked the policy in the courtroom, but federal officials continued to enforce it at the airport.

After several iterations of the ban and 16 months of litigation, which can be traced in our issue brief, in June 2018 the Supreme Court explicitly and purposefully ignored Trump’s history of hateful rhetoric against Muslims in order to uphold his policy in their ruling on in Trump v. Hawai’i. This came despite the Fourth Circuit Court of Appeals stating earlier that “it is hard to imagine how an objective observer” could not conclude that “the President’s repeated statements convey the primary purpose of the Proclamation—to exclude Muslims from the United States.” In fact, a majority of Americans agree with the Fourth Circuit and see the ban as a policy intending to target Muslims, as well.

Now in force, the full impact of the Muslim and Refugee Ban cannot be known. We cannot count the stories that will never be written, nor quantify the collective losses the Ban has incurred. But we do know that families, communities, and institutions are suffering; a Yemeni mother was separated from her dying toddler only be recently granted a waiver to return to the U.S., at the last moment, and only after intense public outcry. The waiver process writ large is as farce, however: the mother was one of only 2% of applicants who have been able to obtain a waiver under the Ban, the possibility of which weighed heavily in litigation.

Seeing failure at the highest Court, civil rights organizations have since turned to Congress for redress. The Court's holding in Trump v. Hawai’i was based on their interpretation of the Immigration and Nationality Act, after all, not the Constitution. Notably, that same interpretation has been grasped by the Trump Administration to issue the Asylum Ban for those searching for safe harbor along the U.S.-Mexico border. And yet, the Congressional tendency to be more loyal to party than to liberty has stymied progress thus far. The hopeful among us now look to the 116th Congress, the first elected since the Ban was enacted, to right that ship.

Unfortunately the loyalty Congress seems to show to party above all else is reflected in ourselves: AAI President James Zogby has found that, regarding Arabs and Muslims, “the views of Democrats and Republicans are exactly the opposite of one another, with Republican attitudes toward the two communities being extremely negative and the views of Democrats being overwhelming positive.” Through policy and rhetoric alike, President Trump has attempted to paint the treatment of ethnic and religious minorities a political, instead of a moral, issue.

The contemporary view of some that the rights and dignity of marginalized groups are mere talismans to be traded for votes cannot outlive our nation's collective lapse in judgment. And it will not. Evidence of that warm glow of equality that every American generation is promised but few feel, of dignified treatment of all, and of an end of the Muslim and Refugee Ban comes not from a single piece of legislation, a result of litigation, or a repeal of a presidential proclamation. It comes from a declaration the American people made early last November by passing definitive affirmations of voting rights and assembling the most diverse Congress in history, which includes two Arab American Muslim women. In the shadow of the Ban, separated families along the southern border, depressed grants of asylum, and an extensive toolkit of nationalist restrictions on the liberty of movement, voters last year sent a clear message to all: America still has a place for your family, and your voice, and your vote.

The impact of that message will be delayed, however. The current shutdown over a nativist border wall will continue, the realities of divided government will follow, and the next election cycle will dominate thereafter. Progress is never immediate. Despite this, AAI and other civil rights organizations will refuse “to take the tranquilizing drug of gradualism” that Martin Luther King warned us of last century.

Forever striving to be a moral nation, yet often falling short, many Americans believe in their core that we are larger than our present politics and better than our past practices. The xenophobia allowing, and challenges resulting from the Muslim and Refugee Ban have given America yet another opportunity to prove the validity of that belief to ourselves and a candid world. Two years after the Ban was first enacted and we can already begin to see the light.