How Long Can The Courts Keep Donald Trump’s Muslim Ban At Bay?

Donald Trump's Muslim ban is back, with higher stakes than ever. Can the courts and activists continue keeping it at bay?

WASHINGTON, DC - OCTOBER 18: Following a rally in Lafayette Park, activists arrive at Trump International Hotel during a protest against the Trump administration's proposed travel ban, October 18, 2017 in Washington, DC. Early Wednesday morning, a federal judge in Maryland granted a motion for a preliminary injunction on the administration's travel ban. This is the Trump administration's third attempt to restrict entry into the United States for citizens from mostly Muslim-majority countries. The Department of Justice said it plans to appeal and the White House issued a statement calling the judge's decision 'dangerously flawed.' (Photo by Drew Angerer/Getty Images)
Activists protest against the Trump administration's proposed travel ban on Oct. 18, 2017 at Trump International Hotel in Washington. Photo: Drew Angerer/Getty Images

On Tuesday night, two U.S. judges on opposite sides of the country issued last-minute injunctions against President Donald Trump’s latest travel ban, which was set to take effect the following morning. The rulings came in response to lawsuits filed by the International Refugee Assistance Project and the state of Hawaii, both of which challenged the legality of Trump’s executive order banning entrants from eight countries — including six predominantly Muslim nations. In Hawaii, District Judge Derrick Watson ruled that the latest executive order “plainly discriminates based on nationality” in an unlawful way. In Maryland, District Judge Theodore Chuang echoed Watson, citing Trump’s tweets and his (now-deleted) campaign pledge, which was titled “Statement on Preventing Muslim Immigration.” Chuang called the current order an “inextricable re-animation of the twice-enjoined Muslim ban.”

“This is a president that has a history of making statements that target Muslims.”

It is rare for the judicial branch to interfere so persistently in issues of national security and immigration, but Trump’s presidency makes for an extraordinary case. “This is a president that has a history of making statements that target Muslims,” said Mariko Hirose, litigation director for the International Refugee Assistance Project. “So it’s clear, no matter how he’s trying to dress it up, that is still what he’s doing.” Hirose’s assessment echoes Watson and Chuang’s findings, but others wonder whether — and for how long — the courts will continue to hold Trump’s campaign statements against him.

Chuang added in his ruling that the president had “not shown that national security cannot be maintained without an unprecedented eight-country travel ban.” According to the administration, the travel bans were “never, ever, ever based on race, religion, or creed,” but rather on an impartial national security assessment. The government, however, has denied requests to release the specific findings of the Department of Homeland Security report purportedly used to justify the decision. Instead, administration officials defended the travel ban in general terms, claiming it determined the list of eight countries based on compliance with information-sharing requests. Yet the list itself contradicts these claims: Iraq, for instance, was removed from the list between various iterations of the ban despite its noncompliance, while Somalia, which fulfilled the requirements, remains banned. The inclusion of North Korea can hardly be said to have a meaningful effect on immigration; out of the millions who would have been affected when visiting the U.S. last year, only 61 of the visas were for North Koreans. Venezuela’s mention in the ban is misleading, too: The order only applied to a few individuals, not the general population. The meaningful impact of the ban, then, applies only to Muslim-majority countries.

The temporary injunctions issued this week were limited in scope. They centered on the six Muslim-majority nations included in the ban and did not address the issue of refugees. (It’s still unclear what will become of Trump’s moratorium on refugees, which is set to expire October 24, but he’s already slashed the total refugee quota for next year by more than half.) For the time being, though, individuals from Iran, Syria, Yemen, Somalia, Sudan, Chad, and Libya should still be able to obtain visas for traveling to the U.S. This week’s rulings are “reason to celebrate — for a day,” said Hirose. Yet the future of the ban, and the “roughly 150 million” affected by it, according to the Hawaii judge, remain in limbo.

WASHINGTON, DC - OCTOBER 11: A woman wearing a hijab stands outside the U.S. Supreme Court, October 11, 2017 in Washington, DC. On Tuesday, the U.S. Supreme Court dismissed one of two cases challenging the Trump administration's effort to restrict travel from mostly Muslim countries. The court dismissed the case because the travel ban has since been replaced with a new version of the administration's controversial travel restriction. (Photo by Drew Angerer/Getty Images)

A woman wearing a hijab stands outside the U.S. Supreme Court on Oct. 11, 2017 in Washington.

Photo: Drew Angerer/Getty Images

While this is the third time courts have managed to frustrate Trump’s efforts, there is no reason to believe this pattern can continue indefinitely. This much seems clear: The Trump administration is determined to press for some form of a Muslim ban, one way or another. The administration responded to the judges’ rulings immediately, decrying the decisions and vowing to appeal. The case will likely end up in the Supreme Court, where a verdict would be difficult to predict. The stakes are also higher than ever: Unlike previous iterations of the ban, which were meant to be temporary, the current executive order is intended to last indefinitely.

There are questions over whether the bulwark of the lower courts — or the outrage and activism instrumental in keeping the government to account — will be able to sustain the determination of the Trump White House to push through its anti-Muslim agenda. Resistance has faced many setbacks, and earlier this month, the Supreme Court dismissed one of two cases challenging earlier versions of the ban, declaring the suit “moot” after Trump’s third order. It is expected to dismiss the second, pertaining to refugees, later this month. The International Refugee Assistance Project, the American Civil Liberties Union, and other groups have vowed to keep up the fight, but the now nine-month battle has been a bruising one.

“There are a lot of reasons to be concerned that the Supreme Court will rule in favor of Trump.”

“There are a lot of reasons to be concerned that the Supreme Court will rule in favor of Trump,” said Moustafa Bayoumi, professor and author of “This Muslim American Life: Dispatches from the War on Terror.” Not only did the Supreme Court allow much of Trump’s ban to stay in place over the summer, but, Bayoumi argued, “the court has also been traditionally skeptical of interfering with the executive branch when it comes to immigration.” The initial momentum of opposition to the ban has been weakened after months of legal battles. “I’m concerned that we’re all getting worn down by this relentless administration,” Bayoumi said. “Meanwhile, the Trump administration is bringing the strands of xenophobia and Islamophobia together in dangerous ways.”

The uncertainty surrounding the issue has led to a steep drop in visa applications from the targeted countries — and the Muslim world in general. Not to mention that Arab and Muslim communities in the U.S. continue to live under constant anxiety. Muslims are used to encountering Islamophobic ideas in mainstream culture, said Sarab al-Jijakli, a Syrian-American organizer and national president of the Network of Arab-American Professionals. “It’s another thing when an outspoken bigot sits in the White House, surrounded by Islamophobic advisers.”

The rulings on these cases may have life-or-death consequences. Yemeni activist Radhya al-Mutawakel came here for refuge when her human rights efforts made her a target of violence, but says the atmosphere instigated by Trump’s policies have been a shock to her. “We all feel afraid now,” she said. “This country is supposed to be for freedom, but now we see our lives are being played with by the mood of this very odd president.” She’s had to decline invitations to speak abroad about human rights in her country for fear she won’t be allowed back in. For now, she’s set to stay until her visitor visa runs out. “And then? God knows.”

Top photo: Activists protest against the Trump administration’s proposed travel ban on Oct. 18, 2017 at Trump International Hotel in Washington.

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