“[I feel] as if I and my fellow American Muslims are unwanted, different, and somehow dangerous.” – Fahed Muqbil, plaintiff in Muslim Ban lawsuit Zakzok et al v. Trump
A five-year old boy arrived at the airport with his mother, eager to be reunited with his father who was in the United States. After years of waiting for an immigrant visa, the day had come when his family could finally be together again. But the dream quickly crumbled: the child and his mother were denied boarding their flight because President Trump had just signed the first executive order banning the entry of individuals from several Muslim-majority nations including his place of origin, Yemen.
The Muslim Ban, in all three versions enacted through two executive orders and a presidential proclamation, violates the constitution and legalizes discrimination at the institutional and individual levels. It has inflicted lasting and extensive harm that has upended the personal, professional, and academic activities of countless Muslim families, children, and communities around the world, including:
- Prolonged separation of family members
- The loss of First Amendment freedoms – including religious activity
- Significant restraint of travel and freedom of movement
- The promotion of harmful stereotypes of Muslims
- Psychological harm and mental stress
- Subjection to physical violence
False and defamatory portrayals of Islam and Muslims in the public sphere, including in mainstream news and entertainment media, have triggered an increase in anti-Muslim discrimination, violence, and hate speech in the U.S. to an extent never witnessed before.
This section of the report examines the origins, content, and trajectory of the unconstitutional and discriminatory Muslim Ban.
Hateful and Islamophobic Origin
The Islamophobic roots of the Muslim Ban are well-documented. In his original dictate for a “complete shutdown of Muslims entering the United States,” Donald Trump cited a defective and inaccurate Center for Security Policy (CSP) poll as justification. CSP is an extremist anti-Muslim hate group founded by Frank Gaffney and is a core node of the national Islamophobia Network.[ii] Gaffney is a conspiracy theorist who, among other ludicrous claims, has accused former President Barack Obama of being a secret Muslim.
Trump repeated his bigoted views on Islam and Muslims in a variety of contexts including print, television, and official statements. In an interview with Fox News the day after Trump signed the first unconstitutional Muslim Ban executive order, former New York City Mayor Rudy Giuliani blatantly admitted that the Muslim Ban was the promised outcome and legal manifestation of Trump’s year-long hateful and bigoted campaign which was fueled, in significant part, by a desire to stigmatize Islam and Muslims.
“Show me the right way to do it legally,” Trump said, according to Giuliani. “And what we did was we focused on, instead of religion, danger,” Giuliani continued in his interview. “The areas of the world that create danger for us, which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible.”
In his own words Trump later stated that the facially neutral language of the Muslim ban was merely a pretext for discrimination. “People were so upset when I used the word Muslim. Oh, you can’t use the word Muslims…And I’m OK with that, because I’m talking territory instead of Muslim.” Thus, the animosity underlying the ban is clear to see, and the absence of the words “Islam” or “Muslim” does nothing to obscure it. It is also important to recall that there was not a single mention of “Japanese” or “Japanese American” in President Franklin D. Roosevelt’s Executive Order 9066, which resulted in the incarceration of an estimated 117,000 Americans of Japanese descent.
Muslim Ban 1.0
From its very conceptualization, then, the unconstitutional Muslim Ban revealed an illegal, discriminatory intent and effect: to target a religious group behind a façade of national security. Though it did not apply to all Muslims, it did ONLY apply to Muslims. Constitutionally, it violated:
- The Establishment Clause of the First Amendment: Because the purpose and effect was to discriminate on the basis of religion, it imposed upon Islam the stigma of government disfavor. It signaled that Islam is uniquely threatening and dangerous because it was the only religion that was singled out for disfavored treatment.
- The Free Exercise of the First Amendment: It deprived lawfully resident American Muslims originating from the listed Muslim-majority countries their right to free exercise of religion by discriminating against them based on their religious beliefs, and by burdening their right to freely exercise their religious faith.
- Equal Protection under the Fifth Amendment: It deprived lawfully resident American Muslims originating from the listed Muslim-majority countries benefits afforded under the Immigration and Naturalization Act (INA) of 1965 and international human rights laws, such as political asylum. This unfairly and discriminately targeted religious conduct for distinctive treatment.
The anti-Muslim and anti-Islam animus driving the unconstitutional Muslim Ban was further exemplified by the use of coded language within the text of the order itself, which drew on falsehoods and key words and phrases recycled by anti-Muslim bigots in their offensive against Muslim families and children. A few examples will suffice.
First, the executive order drew on the false premise that Muslims specifically “bear hostile attitudes toward [the United States] and its founding principles.” This was evidenced in the President’s numerous Islamophobic statements, such as when he expressed in a CNN interview in March 2016 that “Islam hates us.” When he was asked to distinguish those who commit bad actions, Trump asserted, “you don’t know who is who.” In another instance in June 2016, Trump accused Muslims of “trying to take over our children and convince them how wonderful ISIS is and how wonderful Islam is.”
Another example of how the rhetoric of the anti-Muslim hate groups infused the document was the use of common anti-Muslim phrases such as, “honor killings,” “violent ideologies over American Law,” and “persecution of those who practice religions different from their own.” These are wholly constructions formed and disseminated by the Islamophobia Network and those who possess a close-minded prejudice against Muslims.
The effect of the order was immediate. It separated mothers from their children, husbands from their wives, and broke families apart solely because of where they were coming from.
A CAIR lawsuit put it well: “Trump’s action[s] are arbitrary and capricious, shock the conscience, violate the decencies of civilized conduct, are so brutal and offensive that they do not comport with the traditional ideas of fair play and decency, lack even a rational relationship to any legitimate government interest, and have substantially burdened and unduly deprived the Plaintiffs and similarly situated Muslims their constitutionally protected rights, including their right to be free from discrimination on the basis of religion, the right to be free from condemnation by the government on the basis of their religion, the right to be free from being singled out by the government or disfavored treatment on the basis of their religion, liberty interests in engaging in international travel and returning home in the U.S., their international human rights, their right to free exercise of religion, and their rights to freedom from false stigmatization.”
License for Hostility
Muslim Ban 1.0 also triggered social media scorn against Muslims and Islam. What was unique was the degree to which it was linked to a specific policy adopted by a U.S. administration and fed by the statements of a sitting American president. Social media users utilized the arrival of the ban as a vehicle to justify their contempt for and attacks against Muslims and Islam.
A common refrain was to denigrate Muslim persons as inherently deviant while embracing the ban as a protection against that deviance. For example, one user posted the following: “When one says #NoBanNoWall, I imagine they are ok with young children being assaulted by sexually repressed Muslims. #YESbanYESwall.”
Some used the Muslim Ban to advocate for the exclusion of American Muslims: “Hey ho, hey ho, Islam has got to go!” Others heaped scorn on the Muslim community categorically: “…#YesBanYesWall Fuck you and fuck #islam.”
Individuals also used the hashtag #banislam to organize their anti-Muslim postings. One individual “thank[ed] President Trump for keeping us safe” and exclaimed “No Rapefugees!!” Another linked to an article about the unconstitutional Muslim Ban and commented “#banIslam FOREVER.”
Muslim Ban 2.0
Following extensive legal pushback against the unconstitutional Muslim Ban, the president revoked the first executive order and issued Muslim Ban 2.0, which banned entry to the U.S. for individuals from six of the seven original countries. Yet the new order remained discriminatory in both purpose and effect. In fact, prior to its issuance, Senior White House Policy Adviser Stephen Miller said as much in a Fox News interview when he claimed that the revised version would “have the same basic policy outcome.”
In an attempt to strengthen the facade of national security, the administration also adopted a rhetorical shift when discussing the Muslim Ban. Then Secretary of Homeland Security John Kelly attempted to reframe the order from being a Muslim Ban to one that sought to address “questionable vetting procedures.”
This obfuscation did not work. In its analysis, the Fourth Circuit Appeals Court declared that Muslim Ban 2.0 could not “be divorced from the cohesive narrative linking it to the animus that inspired it.” It was evident that the primary purpose remained to “exclude persons from the United States on the basis of their religious beliefs.” Like the earlier iteration, Muslim Ban 2.0 violated the Establishment Clause of the First Amendment as well as provisions of the INA. The Court described it as an order that “drips with religious intolerance, animus, and discrimination.”
A Bona Fide Relationship
In June, the Supreme Court consolidated the ongoing cases on the Muslim Ban and stated that the order would remain in effect, except for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the U.S.” For individuals, the Court explained, this means a “close familial relationship.” The State Department then issued guidance defining “close familial relationship” to exclude grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law.
This guidance was challenged by the district courts. The Hawaii Court concluded that this was in conflict with the scope of familial relationships recognized in relevant federal immigration statutes, and “represents the antithesis of common sense. Common sense for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members.” It is clear that the only explanation for such an irrational definition of “bona fide” was a desire to keep as many Muslims as possible out of the United States.
Muslim Ban 3.0
On September 24, 2017, the executive order on the unconstitutional Muslim Ban 2.0 expired and Trump issued Muslim Ban 3.0 as a presidential proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public Safety Threats.” This newest iteration indefinitely bars virtually all or some travel to the U.S. from Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela. Like the previous two iterations, it continues to violate the Establishment Clause and the INA. Unlike them, it is indefinite and potentially permanent.
Like its forebears, the unconstitutional Muslim Ban 3.0 facially invokes national security concerns while operating both by design and in actual effect to disadvantage Muslims. Adding North Korea and a small group of Venezuelan government officials and their families to the mix does not change this. Rather, it is a transparent attempt to add a fig leaf of religious neutrality to the order. In a joint declaration, forty-nine former national security, foreign policy, and intelligence officials have stated that as a national security measure” Muslim Ban 3.0 is in fact “unnecessary” and of “unprecedented scope.”
As of the writing of this report, the Supreme Court has yet to rule on the merits of the unconstitutional Muslim Ban, which has separated families, limited constitutional freedoms, and promoted harmful stereotypes about Muslims. The Ban is damaging American communities. To remain true to the shared ideals that hold this nation together, the Supreme Court must permanently strike down the ban, and unequivocally demonstrate that religious freedom and equality are for all.
- Demand that elected officials make public statements rejecting the unconstitutional Muslim Ban as a hate-driven policy contrary to American values. Contact your local CAIR chapter at cair.com/chapters to learn how you can amplify existing efforts.
- Request lawmakers in Congress to support and adopt legislation that reverses President Trump’s unconstitutional Muslim Ban executive order and blocks its implementation. Such legislation includes Representative Judy Chu’s (D-CA) and Senator Chris Murphy’s (D-CT) companion bills, H.R. 4271 and S. 1979, in the House and Senate respectively, that block the unconstitutional Muslim Ban by prohibiting use of any funds or fees to implement Executive Order 13780.
- Add your voice to the action alerts generated by CAIR at cair.com/chapters or other civil rights organizations that demand Congress oppose discriminatory “extreme vetting” measures, visa system changes and visa delays that endanger the ability of immigrants, students, and travelers to come to the U.S.
- Email editors of national media outlets at [email protected], [email protected], and [email protected] voicing your objection to the unconstitutional Muslim Ban as a hate-driven policy contrary to our shared American values.
- Support and attend local and national rallies, meetings, and efforts opposing the unconstitutional Muslim Ban, and supporting DACA, the DREAM Act, Black Lives Matter, and other campaigns and movements for respect and equality. The struggle for dignity is a joint struggle and it is critical to be present in each other’s campaigns for justice.
- Utilize every opportunity to make public statements rejecting the unconstitutional Muslim Ban as a hate-driven policy contrary to American values, remind fellow Americans of our shared values, and tell stories of the lives, hopes, and dreams of American Muslim families.
- Support and co-sponsor legislation that would undo the Trump Administration’s unconstitutional Muslim Ban executive order and related policies that impact the rights of all travelers, including:
- Companion bills, H.R. 4271 and S. 1979.
- Companion bills, H.R.1006 and S.349, introduced by Representative Pramila Jayapal (D-WA) and Senator Kamala Harris (D-CA) in the House and Senate respectively. The bills guarantee legal counsel to those detained upon entry to the U.S., and clarify the rights of all persons who are held or detained at a port of entry or at any detention facility overseen by CBP or ICE.
- The Freedom of Religion Act of 2017 (H.R. 852) introduced by Representative Don Beyer. This seeks to amend the Immigration and Nationality Act to ensure that non-American citizens are not denied admission or entry into the U.S., or other immigration benefits, because of their religion.