A week after taking office in January 2017, Donald Trump issued Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” suspending entry to the U.S. for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The federal courts deemed this order and a second iteration that followed unconstitutional. A third iteration, Proclamation 9645, issued September 24, 2017, was also challenged in the courts, and in October 2017 a federal district court in Hawaii granted a nationwide injunction barring enforcement. This version placed entry restrictions on the nationals of eight states whose systems for sharing information the President deemed inadequate, resulting in what former Acting Solicitor General and counsel in Trump v. Hawaii Neal Katyal has described as “a ban on foreign nationals’ entry to the country using a facially neutral policy that predominantly impacts Muslim-majority nations.” The 9th U.S. Circuit Court of Appeals upheld the district court’s decision, observing that the Proclamation likely contravened two provisions of the Immigration and Nationality Act, 1182(f) and 1152(a)(1)(A). The first, 1182(f), authorizes the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States,” while 1152(a)(1)(A) provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” On June 26, 2018, the U.S. Supreme Court reversed the 9th Circuit’s decision, ruling 5-4 in favor of the government. With anti-Muslim rhetoric at the highest levels of the U.S. government, including numerous incontrovertible statements by the President himself, how could the majority in Trump v. Hawaii find that the ban is not about religion or religious animus?
All sides in the Supreme Court decision act as if the ban is motivated either by religion, in which case it is illegal, or national security, in which case it is legal. It is not only the majority; the concurrence and both dissents also posit sharp distinctions between religion and national security. Chief Justice John Roberts writes for the majority that the ban is “expressly premised on legitimate purposes and says nothing about religion.” The dissent counters that the ban is motivated not by security but religious animus, rendering it unconstitutional. The majority, the dissent, Justice Anthony Kennedy’s concurrence and Justice Stephen Breyer’s dissent all presume that the ban either rests legitimately on a national security justification or illegitimately on anti-Muslim bias. Outside experts echo the binary: co-director of the Brennan Center’s Liberty and National Security Program Faiza Patel notes that “the Muslim ban has been in effect for over a year, upheld by the Supreme Court despite overwhelming evidence that it was motivated by religious animus not national security.”
The segregation of matters of religion from matters of national security fails to reflect the political or religious realities of the contemporary United States. It is not and has never been possible to disentangle religious and racial animus from practices of national security. To understand, and ultimately to challenge, the ban requires confronting the specific ways in which religion, race, and national security are entangled not only in Proclamation 9645 but in the history of American foreign and immigration policy more broadly. The law is ill equipped to address this situation because it is in part responsible for creating it. Examples of legal discrimination which relied on and reinforced various forms of racial and religious favoritism include the Chinese Exclusion Act of 1882, which suspended Chinese immigration for ten years and declared the Chinese ineligible for naturalization, and the Johnson-Reed Act of 1924, which limited the number of immigrants allowed to enter the U.S. through a national origins quota that provided immigration visas to 2 percent of the total number of people of each nationality in the United States as of the 1890 national census, and completely excluded immigrants from Asia.
The law and the courts have played a crucial role in contributing to a status quo in which a small but significant segment of the American public understands anti-Muslim animus and national security to be indistinguishable. The argument that the ban is either about anti-Muslim animus or national security refuses the assumptions on which the ban itself is based and ignores the political context in which it was promulgated. Katyal, the attorney who argued the case for the State of Hawaii and other plaintiffs, makes a similar point: “in focusing on the four corners of the Proclamation, the Court ignored the tainted influence of the President’s comments on the Proclamation itself. Though the majority recognized that President Trump had instructed his lawyers to craft a ‘legal’ version of a Muslim ban, it assessed the Proclamation as if it had randomly dropped out of the sky.”
He is right, but we need to take this argument further. Far from being invented by Trump, discriminatory treatment of non-nationals is a product of state sovereignty. Institutionalized discrimination is the product of U.S. law and a side effect of an international order based on sovereign claims to land. Discrimination literally comes with the territory; border politics are violent regardless of who is in charge. A long list of groups designated as threats have suffered: the Japanese during World War II, the Chinese in the early 20th century, those accused of international terrorism today, not to mention those deemed internal threats including Native Americans, communists, Puerto Rican nationalists, Muslims, African-Americans, and others. The U.S. security apparatus, government, media, and popular discourse all reinforce the perception of these groups as threats.
Trump v. Hawaii reflects and revivifies this darker side of the American project. It contributes to a climate of suspicion surrounding American Muslims, heightening a tendency to filter their words, actions, and appearance through the lens of moderation versus extremism. Moderate, good American Muslims are seen as allies in the war on terror; others are potential terrorists, importers of Shariah, and oppressors of women. National security policy is shot through with assumptions about what it means to be democratic and tolerant, and what it means to practice religion in ways that are understood to be moderate and free. These favor particular understandings of Islam (as private faith) while disfavoring others (observance of Shariah). The U.S. has long sought to coopt Muslims abroad in the interest of national security, and American conceptions of religious freedom and moderation are institutionalized in the law through mechanisms aimed at preserving security. To understand the travel ban requires grappling with how the politics of religion is plainly expressed through U.S. political and legal institutions, not outside of them.
The First Amendment also cannot save us. In her dissenting opinion in the Trump v. Hawaii case, Justice Sonia Sotomayor criticizes the majority for abandoning our constitutional commitment to religious liberty, noting that the ban “runs afoul of the Establishment Clause’s guarantee of religious neutrality.” “The First Amendment,” she writes, “stands as a bulwark against official religious prejudice and embodies our Nation’s deep commitment to religious plurality and tolerance.” Typical of liberal legal discourse on religion, Sotomayor’s nostalgic reference to the First Amendment fails to reflect the patchy and partial legal protection and privileging of particular religions by the Court in this case and others throughout U.S. history. The First Amendment does not and never has stood as a bulwark against government-sanctioned religious and racial prejudice, particularly in cases where national security is involved. Katyal notes that Korematsu, a notorious 1944 Supreme Court decision sanctioning the internment of Japanese Americans and upholding an exclusion order based on what dissenting Justice Robert Jackson described as a “mere declaration” of “reasonable military necessity,” was simultaneously overturned and revived by the Court in Trump v. Hawaii. In this, the dissent is right: “by blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”
National security is and has always been a racial and religious discourse. To account for this requires not only re-reading U.S. history but also inventing new ways of talking about religion in legal and political contexts. It means forgoing attempts to prove that the president’s anti-Muslim animus animates the ban—which is as obvious as it is legal—in favor of grappling with the political problems indexed by Proclamation 9645.
Those problems deserve immediate attention. The ban emerges from a broader anti-liberal social and political movement that, as French political scientist Nadia Marzouki explains, is “far from the liberal approach to constitutional democracy, which affirms equal rights for all and extends legal protections to religious minorities to shelter them from the chance winds of popular will.” In this movement, the sovereign people, “united and already constituted, may at any moment decide to suspend the guaranteed constitutional protections when faced with a threatening minority that is not part of ‘the people.’” Extrapolating to the present case, supporters of Trump’s travel ban believe that national security demands action against a threatening minority that is allegedly not part of the people. Describing these supporters as merely “Islamophobic” does not capture their ambitions. The aim of the broader movement from which these supporters emerged, as Marzouki notes in her book, is to “prolong the controversy over Islam, saturate public discourse in arguments hostile not only to Muslims but to the Obama administration, the Democratic Party, a certain conception of liberal democracy—and even toward conservative Republicans who are considered too moderate.”
This populist challenge, according to Marzouki, focuses “not on rights but on what is right.” This accounts for the limited resonance of liberal arguments against Countering Violent Extremism programming and the surveillance and disciplining of so-called Black Identity Extremists. Moreover, as exemplified by the reference to “honor killings” in the ban’s first iteration, nationalist-populist efforts to generate hostility against Muslims and Islam tap into a long history of mobilizing rights discourse on gender equality to justify various forms of imperial feminism–the appropriation of women’s rights in the service of empire.
Different responses to these developments are needed on different fronts. Political organizing is crucial: new movements; new forms of organizing in the streets, schools, and airports; campaigns for justice and solidarity with those excluded by these policies; and efforts to elect representatives that stand ready to dismantle them. Modifying the laws that grant such exceptional powers to the executive is also urgent. The president exercises extraordinary authority in foreign relations and immigration. The majority in Trump v. Hawaii argued that even if one assumed that anti-Muslim animus motivated the ban, assessing motivation for the orders falls beyond the purview of the Court’s authority. In Chief Justice Roberts’ words, “by its terms, §1182(f) exudes deference to the President in every clause.” Writing in the Illinois Law Review, Northwestern University law professor Erin Delaney explains that the majority invoked a set of legal rules known as the “plenary-power,” shorthand for a state of affairs in which setting rules for entry and exit and determining the status of aliens are federal powers that are largely insulated from judicial review. Plenary power over immigration, Delaney continues, is “rooted in the stark racism of the late-nineteenth century, and one subject to much criticism.” Though briefly checked during the Watergate era, the congressional framework put in place to constrain presidential conduct has eroded. Since 9/11 both parties have unleashed virtually unlimited presidential powers in the name of national security. Katyal describes this as “very-near-blind deference to the executive branch,” and Harvard Law School professor Jack Goldsmith predicts that “after Trump, and due to him, there will be a serious reckoning with this constitutional arrangement like no time since the 1970s, and possibly ever in American history.”
Finally, Americans have outgrown the antiquated conventions of First Amendment-speak. We need new legal discourses on religion that better reflect U.S. political and religious realities. It is hard to believe that Chief Justice Roberts could write that the travel ban “is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion.” There is no religion untouched by state attempts to enforce security. Religion, race, and national security are and always have been co-constituted. The U.S. has been defined as a nation by securing “real” Americans against a series of religious, racial, and civilizational others. Other Americans have vehemently opposed these efforts. To do so effectively in this case starts with acknowledging that no matter what the Court says, Proclamation 9645 is both a Muslim ban and a national security-based ban. In this sense, if only in this sense, its proponents have it right.
Elizabeth Shakman Hurd is a professor of politics and religious studies at Northwestern University and the author of Beyond Religious Freedom: The New Global Politics of Religion.