In Memoriam: The Muslim Ban
On January 27, 2017, President Donald Trump followed through on a vile campaign promise, and issued his first Muslim ban, creating chaos and protest around the nation’s airports. Four years later, President-elect Joe Biden pledged to repeal the Muslim ban on his first day in office, a promise that was confirmed in a memo on Saturday by his chief of staff.
The latest version of the Muslim ban was issued as a Proclamation and in its current form, excludes certain nationals from thirteen countries: Iran, Libya, North Korea, Somalia, Syria, Yemen, Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan, Tanzania and Venezuela. The Trump administration relied on a section of the Immigration and Nationality Act or immigration statute called 212(f) to issue the ban. That section states “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” While the language of 212(f) is broad, litigants argued that the language is not unfettered, and must be applied in ways that are consistent with the immigration statute as a whole. Lawyers and immigration scholars also argued that the Muslim ban clashes with another section of the statute called 202(a) which “prohibits discrimination “because of race, sex [or] nationality” “in the issuance of an immigrant visa.” In a 5–4 decision on June 26, 2018, the Supreme Court of the United States in Trump v. Hawaii upheld the legality of the Muslim ban on both statutory and constitutional grounds.
The human impact of the Muslim ban has been profound, persisting through two restatements of the ban and in effect well before the Supreme Court decision. U.S. citizens and green card holders have been separated from their spouses despite being in a legally qualifying relationship under the immigration statute. Parents have missed the milestones of their children. As one attorney told me: “The common thread I see among every single person that walks into my office is, I need my Mom because I’m gonna be in labor and I can’t do this without her. Or, I’m the first person in my family to get a PhD; it would mean the world to my parents to be there at my graduation ceremony. Or I’m in love and I’m getting married and I’m getting engaged and this is a huge moment in my life and I would like my parents to meet my future husband. They’re moments in our lives that we normally share with family. . .. Graduations, birth of a child, engagement, weddings; all of them are destroyed for people [because of the Muslim ban].” These words mirror my own experiences working with communities in Pennsylvania. While public attention to the Muslim ban faded, the human consequences endured, as the government continued to exclude people for no other reason than where they were born. As of January 1, 2019, more than 9,000 spouses and minor children of U.S. citizens had been barred, according to the Cato Institute. The Muslim ban is perhaps the greatest untold story of family separation.
Resistance to the Muslim ban was significant and revealed itself inside courts, on the streets, at consulates, and within the halls of Congress, with the introduction of the NO BAN Act, which if enacted would limit the exclusionary authority of the immigration statute and repeal the Muslim ban. The multidimensional lawyering and advocacy exercised in the last four years to challenge the Muslim Ban is an important part of the history, one that I hope lands in the books read by our children and grandchildren. The resistance has also been an endurance test conducted in volatile circumstances, emulating the words of Doris Lessing “Whatever you’re meant to do, do it now. The conditions are always impossible.” We are now in a chapter where a new president repeals the Muslim ban. How the story ends will depend on the details and how the Biden administration handles the residual effects. But on Wednesday, I hope the repeal of the Muslim ban is a moment the movement savors.
Shoba Sivaprasad Wadhia is a law professor and immigration scholar at Penn State Law at University Park. She is the author of two books: Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press) and Banned: Immigration Enforcement in the Time of Trump, (NYU Press).
