ACLU: It’s still a Muslim ban and we’re still challenging it in court

ACLU: It’s still a Muslim ban and we’re still challenging it in court
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The Supreme Court issued an order on Dec. 4 allowing the Trump administration to temporarily move ahead with the latest version of a ban on Muslim-majority countries as legal challenges proceed in the lower courts. Implementation of the ban — the president’s third attempt to make good on his promise of a Muslim ban — is devastating for Muslim families and communities around the country.

But the order did not address the merits of the legal challenges to the ban, including the case brought by the American Civil Liberties Union and partner organizations being argued in the Fourth Circuit, a federal court of appeals in Virginia, on Friday, December 8. This fight is far from over.

The history of the ban is familiar and disgraceful. A major plank of candidate Trump’s campaign was his vow of “a total and complete shutdown of Muslims entering the United States.” He claimed that “Islam hates us” and that there are “problems with Muslims coming into the country.”

When that explicit promise was met with outrage, he publicly and repeatedly told the world that he would pursue the same goal without explicitly naming Muslims. “People were so upset when I used the word Muslim,” he explained. “Oh, you can’t use the word Muslim.  Remember this.  And I’m okay with that, because I’m talking territory instead of Muslim.”


A week into his administration, Trump signed the first order doing just what he had promised: banning a huge number of people from the United States, almost all of them Muslims. As candidate Trump had promised, the order did not use “the word Muslim.” But the intent to target Muslims could hardly have been clearer. In fact, the president went on television the day it was signed and said the order was intended to help Christians at the expense of Muslims.

The chaos was immediate. Thousands were detained at airports. Tens of thousands of valid visas were canceled. Long-time residents of the United States were refused entry and faced the prospect of never being allowed back to their homes. Families were torn apart.

The courts quickly stepped in and blocked the ban, and the government decided to not even defend it. Instead, it issued a new ban order in March. Despite some window dressing, the second ban was basically the same as the first. It still overwhelmingly blocked Muslims from entering the United States in another attempt to make good on Trump’s campaign promise. This version was challenged and blocked in court as well. As the Fourth Circuit put it, the second version spoke “with vague words of national security,” but was the clear product of “religious intolerance, animus, and discrimination.”

The first and second bans were temporary: 90 days. The third version, which is currently being challenged, is indefinite and potentially permanent. It continues the same policy as its predecessors. Over 150 million people are banned from the United States, almost all of them Muslims.

The inclusion of two countries that are not Muslim majority this time does not even qualify as a fig leaf. Even apart from the ban, almost no one comes to the United States from North Korea. And Venezuela, which is also on the list, is not really banned in any meaningful sense. Only certain Venezuelan government officials and their families are affected, and those people are only banned from tourist and similar visas.

By contrast, almost every person from the Muslim-majority countries is banned. The ban’s impact on them is particularly harsh, because it bars them from coming to the United States as permanent immigrants — meaning that U.S. citizens and green card holders will be unable to reunite and live with, for example, their husbands, wives, parents and children. Data from past years suggests that means tens of thousands of families kept apart. The human toll will be devastating.

Those families and communities are not giving up, and neither are we. Two federal courts of appeals will consider the legality of the ban this week, including in the ACLU’s case at the Fourth Circuit. This ban violates the Constitution’s bedrock requirement that the government remain neutral among religions. And it represents an extraordinary claim that the president can rewrite the entire visa issuance system, swapping individualized decisions for blanket nationality discrimination, based on his own executive fiat.

This case may be headed back to the Supreme Court soon, and we will keep standing with those who are affected, and for religious freedom and equality. No Muslim ban is ever acceptable or constitutional.

Cody Wofsy is a staff attorney with the ACLU’s Immigrants’ Rights Project.