Four years after Trump’s ‘Muslim ban,’ its legacy lives on

Four years ago this month, on June 26, 2018, the Supreme Court upheld Trump v. Hawaii. The court ruled, despite evidence to the contrary, that President Trump’s travel ban was neutral and that it was a matter of national security.

For most, the election of Joe Biden and his repeal of the “Muslim ban” renders much of Trump v. Hawaii moot. But with four years of hindsight, the Supreme Court’s refusal to acknowledge that the policy was animated by Trump’s animus still lives with us. Trump v. Hawaii not only upheld the “Muslim ban,” but it set a dangerous precedent that may well impact Muslims – U.S. citizens and non-citizens – for years to come long after Donald Trump or Joe Biden are gone. 

Trump’s Proclamation No. 9645 was not written in a vacuum. Its purpose could not have been made clearer than by President Trump himself. He had promised a “complete and total shutdown of Muslims” from entering the country, proclaimed that “Islam hates us” advocated for closing mosques, wanted to create a Muslim database and even favorably compared his “Muslim ban” to Japanese internment in the 1940s. Yet Trump’s government argued that those comments were unrelated to the ban, which, it insisted, was based on national security.

Despite hundreds of Republican and Democratic national security officials debunking the national security argument, the Roberts court ignored the religious animus of the law and instead focused on the letter of the law. “The text [of the ban] says nothing about religion” and therefore the courts had to accept the president’s rationale of “national security” being the reason behind the policy. This despite that Trump outlined how he would “assemble a commission together” to help draft a ban that would focus on national security to make his illegal “Muslim ban” legal.

Not only did the ruling give a president maximum power and scope when “national security” is concerned but regrettably gives license to the next Trump – a future Trump or maybe even this Trump in 2024 – to take the original “Muslim ban” on five countries and expand it to 15, 20, 30 or even all Muslim-majority countries.

A future president need not stop there. Africans and those of African descent, such as Haitians, could also be banned on national security grounds. This is not hyperbole. It already happened. In the wake of Trump v. Hawaii, Trump expanded the ban to 13  countries, targeted African countries, blocked refugee and asylum seekers and banned immigrants based on health care status and their alleged harm to the U.S. economy — all under the guise of protecting our nation.

And when Trump demanded that “Christians [should] be given priority for entry as refugees to the United States” because it was “very unfair” that Muslims had historically enjoyed such privileges, it’s likely the next Trump-like president will put that into law behind some facially neutral policy. We could see the tens of thousands of Afghan refugees who escaped persecution by the Taliban being deported back to that persecution and probable death thanks to Trump v. Hawaii. Perhaps the next Trump can even separate out Christian refugees from those of the Islamic faith. Trump and his supporters have already targeted Afghan refugees and vowed to block their entry, so it may only be a matter of time.

We could even see states and local governments getting in on the action. Already, several states have passed bills given to them by anti-Muslim hate groups, and those bills are rarely, if ever, challenged. We could see governors calling for registries or targeting mosques just as Trump demanded. Why could a state not set up “special identification tracking,” as Trump suggested they do, in the name of monitoring national security threats? 

Or perhaps they could be barred from entering Congress or government as Rep. Marjorie Taylor Greene (R-Ga.) suggested. Any such law would not say “Muslims need not apply,” but rather would hide behind any legalities to give the Roberts court yet another excuse for inaction. And the politicians who backed these things could be open and flagrant in their demonization and discriminatory intent in public because Trump v. Hawaii gave them the right to be so.

In Trump v. Hawaii, the court held that Korematsu v. United States, the case that upheld the government’s right to place Japanese Americans in internment, was not analogous to the current situation. Yet Korematsu became an example for generations of a court turning a blind eye to prejudice; Trump v. Hawaii will have a similar legacy. Beyond its infamous place in the history books, Trump v. Hawaii will give rise to newer, more creative ways to demonize Muslims and other Americans so long as the discrimination is not in the text of the law. 

Christopher Richardson, an immigration lawyer, was a U.S. diplomat between 2011 and 2018 and served in Nigeria, Nicaragua, Pakistan and Spain.