America’s Changing Identity: Review of Trump v. Hawaii
by Pete Thompson
The Supreme Court’s Decision to uphold the Administration’s travel ban represents an alarming deference to presidential power in the face of a growing human rights crisis. Our country faces apprehension from disadvantaged groups across the world as our government’s wildly contentious immigration policies continue to sow discord from our borders to the Middle East. From the beginning of his campaign, the President’s statements on the travel ban occupied a special place in this chaos – a smoldering, blunt-force policy that specifically targeted Muslims. Whether advocating for an all-out ban against Muslims on his website or resorting to vile stereotyping, the President’s intent to disenfranchise has always been clear.
With these explosive facts in its possession, the Court in Trump v. Hawaii wavered at the critical moment. The Majority essentially declined any substantive review of the President’s extrinsic statements regarding Muslims and emphasized that a national security directive is clearly discernible. Regarding this reasoning, Justice Roberts stated that as long as the travel ban has “legitimate grounding in national security concerns . . . we must accept that justification” – regardless of religious hostility.
Some experts opined that the Supreme Court’s decision was a foregone conclusion given the extraordinary broad powers of the president to react to national threats under the Immigration and Nationality Act.
But many are moved by simpler inquiries: what is the national security threat? And even if one can be articulated, can it really sanction the discrimination against specific groups of people?
Justice Sotomayor states in her dissent that the Majority “blindly accept[s] 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 . . . ” Justice Sotomayor emphasized the similarities with Korematsu v. United States, the case that dealt with World War II internment of the Japanese as matter of national security. In the majority, Justice Roberts disavows the comparison, explicitly overturns Korematsu . . . then essentially reaffirms its ideology. It’s confusing. And highly problematic.
For many, what does constitute a matter of national security is the President’s chronic, alarming rhetoric. But rather than confront the President’s repeated affirmations of discriminatory intent – the source of apprehension for millions of Americans and foreign citizens – the majority only addresses them in a cursory way and essentially takes a pass. In doing so, the Court fails to check an Executive who authored a discriminatory policy that will prevent desperate refugees from seeking shelter in our country, prevent Syrians indefinitely from seeking a better life, and confirm what terrorist cells have long insisted—that Muslim lives don’t seem to matter.
The effect of this ruling will be widespread. For many people fleeing conflict zones, America will no longer be an option. Some effects are more sinister. In Middle Eastern countries, terrorist groups – much like gangs – thrive on self-replicating cycles of poverty. Local groups prey on the weak and vulnerable and make lavish promises to impoverished families who, in desperation, give up their children to the cause. Those children are frequently clothed, educated, and fed a steady diet of anti-American doctrine. Experts warn that the upholding of a Muslim ban – regardless of whether it is a “watered down” version – becomes a highly effective new recruiting tool. As one commentator suggested, those recruiters can now say to their targets:
“You see – the US really does hate you.”
Whether fair or unfair, our policies say so much about us. And it is critical to see the big picture. We have removed the phrase “nation of immigrants” from our USCIS statement. We have separated children from their families. We have enacted a Muslim ban. Our identity is changing. Which brings us to one question.
What does our country really stand for?
Pete Thompson is an associate at Clark Hill in Dallas. He is a passionate pro bono advocate for HRI, having represented several asylum-applicants in front of the Houston Asylum Office and the Dallas Immigration Court. He is the Chair of HRI’s Pro Bono Advocacy Committee.