WASHINGTON -- Today the US Supreme Court, in a five-to-four decision, upheld President Trump’s executive order preventing individuals from Yemen and several other countries from entering the US. Lower courts previously found that this policy was inspired by anti-Muslim bias. Trump has made numerous public statements making clear his xenophobic and Islamophobic feelings, and his desire to prevent foreign Muslims from entering the US. The Supreme Court’s majority did not dispute these facts today; rather, they found that the latest version of Trump’s “Muslim Ban” sufficiently camouflaged this hatred under the guise of national security. After listing many of the President’s anti-Muslim statements in their opinion today, the Justices then describe the bureaucratic steps the administration took to make its discriminatory policy more palatable, and ultimately conclude that the text of the executive order is “facially neutral.” In other words, the five Republican Justices found that although the President of the United States is a bigot, his lawyers did not include any openly bigoted language in their third revision of an order expressly designed to keep Muslim immigrants out of this country.
The Yemen Peace Project has condemned each version of the Muslim Ban in turn. Today we express profound disappointment in the Court’s decision, and call on members of Congress to overturn the ban and curtail the executive branch’s authority over immigration and refugee resettlement policy. However, given the glacial pace at which Congress generally operates, the intense partisanship that often paralyzes the legislature, and the prevalence of anti-Muslim and anti-immigrant sentiment among Republican lawmakers, we recognize that a congressional remedy is extremely unlikely.
The highest duty for any judge is not to uphold the letter of the law, but to ensure that justice is done. The US Supreme Court has, in addition to this, a particular duty to the American people. As Justice Sotomayor wrote in her dissenting opinion, “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.” Today the Court’s majority failed in both of these duties.
Today’s ruling comes as the nation debates other aspects of the government’s immigration policy. With the whole world watching, the Trump administration is exploiting the broad power of the executive branch and the law enforcement agencies it controls to enact an openly racist and xenophobic agenda. If Congress and the Court are not willing to challenge the president when he oversteps the bounds of law and decency, the task falls to the nongovernmental sector, and ultimately, the American people.
The Yemen Peace Project was founded by a group of activists who believed that Americans with some knowledge and understanding of Yemen, and the impact of America’s actions on the Yemeni people, have a duty to challenge harmful and unjust policies. It doesn’t take a policy expert or a Yemen specialist to see the harm and injustice of the Muslim Ban, or of “zero-tolerance” border control, or of selling arms to unaccountable dictatorships. We can all plainly see the dangers of these policies and the animus underlying them. And we all have a duty to act.
Quick facts about the Court’s decision:
The Court’s 5-4 ruling determined that the president’s executive order fits “squarely within the scope of Presidential authority under Section 1182 of the Immigration and Nationality Act,” which allows the president to restrict entry for any alien or class of aliens deemed harmful to the national interest.
The plaintiff’s case was based, among other arguments, on the assertion that the travel ban was unconstitutional because it targeted Muslims specifically. Lower courts have generally accepted this line of argument, finding that Trump’s public anti-Muslim statements were directly connected to the intent of the order. This time the Supreme Court majority decided that the text of the order did not exhibit any of this anti-Muslim bias.
Justice Sotomayor issued a dissenting opinion, joined by Justice Ginsburg, arguing that while the latest version of the ban had been sanitized, the intent was still clear, and unconstitutional. Justice Breyer, joined by Justice Kagan, issued a narrower dissent along similar lines.
As the ban currently stands, strict restrictions remain in place for nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen