Local Muslim organizations expressed disappointment and concern last week at the June 26 U.S. Supreme Court ruling upholding President Trump’s travel ban on citizens from five Muslim-majority countries and two non-Muslim nations.
“The proclamation is unconstitutional,” said Hussain Ahmad, vice president of the East Meadow-based Long Island Muslim Society. “You can’t make laws that segregate people according to religion. We’re flabbergasted. The whole community is so disappointed.”
The 5-4 decision, Trump, President of the United States, et al. v. Hawaii et al., concerned Proclamation No. 9645, which effectively barred citizens from Chad, Iran, Iraq, Libya, Syria and Yemen from entering the United States because those contries do not provide enough information to adequately assess whether their citizens pose a security threat, according to the administration. Chad and Iraq were subsequently removed from the ban after a 180-day review of their procedures, while Somalia was subsequently added. North Korea and Venezuela were also included in the ban.
The decision turned on the question of Trump’s intention in issuing the travel ban. The president’s lawyers contended that the proclamation was meant to address legitimate national security concerns. Lawyers for the plaintiffs in the case — the State of Hawaii, three unnamed U.S. citizens whose family members had been refused entry following the ban, and the Muslim Association of Hawaii — contended that Trump’s intention was to exclude Muslims solely on the basis of their religious affiliation.
Nassau and Suffolk counties have a combined Muslim population of roughy 200,000 to 300,000, including communities from the target countries, according to Ahmad, and mosques have long been familiar sights throughout the counties.
The plaintiffs’ attorneys charged that the proclamation violated the Immigration and Nationality Act, as well as the Establishment Clause contained in the First Amendment to the U.S. Constitution. The act prohibits discrimination in granting visas “because of a person’s race, sex, nationality, place of birth or place of residence.” The Establishment Clause enshrines the principle of religious liberty based on the government’s strict neutrality in religious matters. The majority ruled only on national security portion of the complaint and left claims about the Establishment Clause undecided.
“The president said repeatedly as a candidate, as president-elect and as president that he would ban Muslims from coming into the United States,” said Albert Cahn, regional legal director of the Council on American-Islamic Relations. “To suggest that the ban had nothing to do with religion is disingenuous.”
Justices Stephen Breyer and Sonia Sotomayor wrote that the court should consider the context in which the proclamation was issued, and they cited a selection of the president’s own anti-Muslim remarks made before and after he became president. The court’s decision “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States,’ because the policy now masquerades behind a façade of national security concerns,” Sotomayor wrote in her dissent, which was also signed by Justice Ruth Bader Ginsburg.
CAIR’s Cahn saw the ruling as “a serious betrayal comparable to Dred Scott and Korematsu,” two of the court’s most infamous decisions. Dred Scott escaped from slavery in 1853 and was living in Illinois when he was arrested. He was returned to slavery in Missouri after the court’s 1857 ruling and died a year later. In Korematsu, the court decided in 1944 that President Franklin Roosevelt acted within his authority in issuing the executive order imprisoning hundreds of thousands of Japanese Americans during World War II. The solicitor general filed a notice in 2011 conceding that the government had acted incorrectly in Korematsu, and the court specifically repudiated that decision in the current ruling.
“The parallels with Korematsu are striking,” Cahn said. “In both cases, the court paid undue deference to the president. Ultimately, it’s not a sustainable position.”
Cahn characterized the ruling as “narrow” and “highly technical,” and said he believed the court was “uncomfortable ruling more widely” to establish a broader precedent. “In the long run, I believe the court will correct this,” he said.
Without deciding constitutional issues, the ruling was essentially redundant, according to staff attorney Geoffrey Hinds of Immigrant Legal Services of Long Island. “The court issues travel advisories all the time,” he said. “Everything in the ruling is covered by existing law.” Hinds agreed with Ahmad and Cahn that “the president’s prior statements clearly showed bias and violated any sense of fairness.” The court’s refusal to consider Trump’s public statements in weighing its decision violated the legal principle of strict scrutiny, he said.
Opinions differed as to the wider implications of the ruling. Where Cahn believed its impact would be countered by future rulings on the same issue, Hinds said the court would be unlikely to cover the same ground again. “Any new case will have to address issues not covered” in the current decision, he said.
Both Cahn and Hinds agreed that the inclusion of North Korea and Venezuela was “window dressing,” as Cahn described it. In the case of Venezuela, “the ban only extends to certain high government officials and their families,” he pointed out. “And North Koreans are forbidden by their government from traveling at all.”
While the ban provides for the possibility of waivers, in practice, they are rarely granted, even in cases of medical or other emergency, so immigration from the five countries is effectively at an end. “People have stopped even applying,” Cahn said. “They don’t feel they’d be welcome, even if a waiver were granted.” Immigration from the five countries had been in the tens of thousands annually before the ban.
Repeated requests for comment from local U.S. Citizenship and Immigration Service and Immigration and Customs Enforcement officers were unanswered, as were numerous calls to officials from local mosques in Elmont and Valley Stream.
“We’re hardworking people,” Ahmad said. “We’re represented in many professions. We’re doctors, lawyers, teachers. We pay taxes and own businesses. We contribute to our communities in so many ways.”
Ahmad said he hoped most Americans recognized the fundamental unfairness of the ruling. “We want the support of all Americans of conscience,” he said. “This affects us all. These [First Amendment] principles are fundamental American values, and these are the values that make people want to come to this country in the first place.”