Column – A New Muslim Ban Challenge Seeks to Answer the Questions the Supreme Court Didn’t Settle

The following column by Sirine Shebaya, interim legal director at Muslim Advocates, ran in Slate on February 11, 2019.
Click here to read it on the Slate website.

Two years ago, President Donald Trump issued an executive order banning nationals from several predominantly Muslim countries from entering the United States, in fulfillment of a campaign promise to enact a “total and complete shutdown” on Muslims entering our country. Thousands of people thronged to airports, and over the course of the next weeks and months, multiple courts blocked the order and its subsequent iterations from going into effect. Ultimately, however, the Supreme Court allowed a version of Trump’s travel ban to be fully implemented. After that decision, many thought the legal fight was over. But it’s not—many of the families and groups who have been hit hardest by the ban are continuing to challenge this discriminatory policy and trying to get answers to questions about the travel ban that the high court left unresolved.

On Tuesday, the District Court in Maryland will hear oral arguments on the government’s motion to dismiss three pending cases, including the case IAAB v. Trump, which is being litigated by my organization, Muslim Advocates, and our partners. Although the Trump v. Hawaii decision was a setback, the Supreme Court did not settle the question of whether the ban violates the Establishment Clause in that decision. Instead, it sent it back to the lower courts, where we and our plaintiffs are renewing our legal challenge.

First and foremost, we are continuing with this litigation to ensure that everyone in affected communities knows that there is still room to fight. Despite the high bar the Supreme Court has set for challenging the government’s possibly discriminatory actions in the context of immigration law and questions of purported national security, this is not an ordinary case. Our Constitution still provides a fundamental guarantee against religious discrimination, and we continue to believe that this case presents extraordinary evidence—some of which has yet to be fully uncovered—of religious discrimination. Our clients deserve to see this fight through to its end.

Our clients include Iranian Alliances Across Borders, a volunteer-driven organization that works with American youth of Iranian descent to help them build community and connect to their roots. In part, this happens through programming that includes both Americans of Iranian descent and members of the Iranian community from across the globe. Since the ban first went into effect, its members have experienced a range of harms relating to the ban, and the organization itself has become unable to bring in Iranian nationals or youth for their educational programs, conferences, and other activities. These Americans have clearly been punished by the government because of their perceived religious affiliation, in contravention of the First Amendment’s Establishment Clause.

Our individual clients, meanwhile, have had their lives put on hold indefinitely in some cases and continue to experience severe harm because of the ban. They include an American woman who is separated from her husband, who continues to live in precarious circumstances outside his home country; an American woman who has been separated from her fiancé; and U.S. citizens and lawful permanent resident parents and siblings who are unable to be with their families. They and the broader communities they are part of are continuing to experience stigma and personal loss as a result of this indefinite ban. For them, the stakes could not be higher, and it is on their behalf that we continue on with this fight.

Through our lawsuit, we are sending a message to them and to all the affected communities that we have not given up, and neither should they.

On the legal front, we continue in this fight because we want to ensure that the government does not shirk its obligation to provide the real justification, such as it is, for the policy. The ban has been shrouded in secrecy, and there still appears to be no meaningful reason for its existence. Dozens of experts from both parties have disputed the viability of any national security justification for the ban, and the government still has not provided anything other than a conclusory explanation on this front. Through our litigation, we will be demanding answers from the government about the process that led up to the ban. We will also be demanding answers about the implementation of the ban, which includes waiver provisions that appear to have been nothing more than a sham. This information should shed light on our claims that the ban is inherently discriminatory, and should ultimately provide us with the information we need to prove more fully that it is.

Ultimately, through this lawsuit, we hope to shine a light on the secretive process by which the ban and its apparently ex-post facto justifications came into being, and in doing so, to give the communities it affects another chance to show that it’s unconstitutional. If the case moves forward, the District Court will have a fuller record on the basis of which it can decide, on the merits, whether the ban violates the Constitution’s fundamental protection against discrimination on the basis of religion.

Although the road has been long and hard, it’s not over yet, and we and our plaintiffs will continue our work to show that the ban is not just bad policy, but is also unconstitutional.