Supreme Court Hears Oral Argument on Muslim Ban

Today, the Supreme Court of the United States heard oral argument in the case of Trump v. Hawaii challenging the constitutionality of Presidential Proclamation 9645, otherwise known as Muslim Ban 3.0.

Americans and impacted communities have been fighting back against Donald Trump’s Muslim Ban for over a year, and today is the culmination of our collective efforts. By June of this year, we will learn whether the Supreme Court will allow a Muslim Ban to forever be enshrined into law as a shameful American moral and ethical blunder.

Lawyers on both sides argued their positions today on three key questions presented to the Court: First, whether the President’s travel ban is justiciable. In order for a case to be justiciable, there is a requirement that there be some existing controversy between the parties, that the case be neither premature or a case where the threat of injury has been removed, and that the case does not ask the court to make a determination of a political question. The Supreme Court also heard argument about whether the travel ban violates the Establishment Clause of the First Amendment to the U.S. Constitution.

The Solicitor general, Noel Francisco, arguing on behalf of the government relied heavily on the argument that there was a wide, multi-agency, international review conducted to determine which countries would be designated under the travel ban for failing to meet a baseline of information sharing, and added that the vast majority of Muslim countries were excluded from the ban. Justice Sotomayor pushed back early and asked if the government could represent that no other country that failed to meet the cooperation test was excluded from the travel restrictions. The government responded that Somalia and Iraq were excluded under the “tailored nature” of the ban, also making reference to Chad being taken off of the list of banned countries.

Justice Kagan joined in with a hypothetical of an “out-of-the-box kind of president” posed to the government: suppose a president is elected after a vehemently anti-semitic campaign where the candidate regularly disparaged Jews. The president then asked his staff to issue recommendations for security and what emerged was a travel ban on Israeli’s. The government responded that it was a tough hypothetical and he was not sure that this type of ban would survive rational basis scrutiny because of Israel being a close ally. Justice Kagan went on to say that this hypothetical, bearing a strong resemblance to President Trump, would not be about what is in the president’s heart, rather what the reasonable observer of the president’s conduct would think.

Justice Sotomayor pressed the government hard on the Kagan hypothetical questioning why the actions of the committee charged with finding a way to keep Jews out should not be subject to great suspicion and thorough review given that the committee is responsible to the president and they have been told what the outcome of their responsibility must be. Justice Sotomayor also eluded to the worldwide review report that served as the basis for the Presidential Proclamation and how it has been kept confidential and not been shared with either the litigants or the courts.

Justice Kennedy followed up on the hypothetical asking the government whether challengers, under that scenario, could bring claims under the Free Speech or Free Exercise Clauses, which the government conceded that they could.

The questioning later shifted to Trump’s campaign statements. The government asserted that the Presidential Proclamation is “very transparent” and that statements made by candidate Trump are “out of bounds” for consideration by the court. The government’s reasoning is that the taking of the oath as president marks a “fundamental transformation” from private citizen to public servant.

Justice Kennedy, widely considered a crucial swing vote, gave the government another hypothetical in which a candidate for mayor repeatedly made hateful statements, and took actions consistent with those statements once taking office. Justice Kennedy asks if those statements are irrelevant. The government again responds arguing that the actions taken by Trump are not a Muslim ban because the travel ban does not apply to the majority of the Muslim world and it was based on neutral criteria.

Justice Breyer shifted the questioning to the case-by-case waiver process and expressed skepticism that the number of individuals that have received waivers is enough to overcome the “real problem” of not having a good waiver process in place.

Neal Katyal argued next on behalf of Hawaii and began by saying that Congress has decided to reject nationality based bans before, opting to use a “carrot and stick” approach to reward countries that comply with requirements by fast-tracking entry. Katyal argued that in fact, the government has only identified a single problem, which is not individualized vetting but rather certain countries not cooperating.

Justice Alito questioned Katyal on the president’s authority under the current federal immigration law to exclude any alien or class of aliens whose presence would be deemed detrimental to the United States. Alito also asked if this Proclamation actually does anything to establish a new perpetual immigration policy for the United States. Katyal responded that this Proclamation is a perpetual, indefinite, open-ended ban with no sunset provision.

Justice Kennedy interjected saying that re-examination by the administration every 180 days in the form of a report submitted to the White House indicates a reassessment, adding “you want the President to say ‘I’m convinced in 6 months we are going to have a safe country?’” Justice Kennedy also quotes statutory language indicating he believes the president has broad latitude and authority in immigration policy.

Testing the outer limits of Katyal’s Establishment Clause theory, Justice Roberts posed another hypothetical: if the president’s advisors recommended an airstrike on Syria, would that violate the Establishment Clause because Syria is a Muslim-majority country and, therefore, anti-Muslim discrimination? Katyal pushed back arguing that this Proclamation was not introduced in the context of a pressing national security emergency like the hypothetical. In addition, Katyal stressed that the Establishment Clause is not at the heart of Hawaii’s position, but rather the flouting of Congressional authority in the context of immigration law. Arguing this point, Katyal said that if there are no limits to the president’s ability to prohibit the entry of any class of aliens, he could potentially ban software engineers from entering so as to protect the technology sector. Katyal argued that generally, the president can supplement congressional policy, but cannot completely supplant it.

Chief Justice Roberts also returned to the political rhetoric of the president from the campaign, promising a “total and complete shutdown of Muslims entering the United States.” Katyal argued that if President Trump had repudiated his campaign remarks, the Establishment Clause arguments would not exist, but the president has not repudiated; he has doubled down by complaining about his administration drafting a “watered down, politically correct version” to cure legal deficiencies, and retweeted anti-Muslim videos with captions like “Muslim migrant beats up Dutch boy on crutches!” and “Muslim Destroys a Statue of Virgin Mary!’

Justice Alito questioned how a reasonable observer could conclude that this was a Muslim Ban when only 8% of the world’s Muslims are impacted. Katyal rebuts by arguing that the point of focus should not be the 8% of the world’s Muslims, but the fact that 98% of the people affected are Muslim, or what he referred to as “religious gerrymandering.”

It becomes clear towards the end of the hearing that the Supreme Court’s decision may turn on whether it believes that the exceptions to the travel ban are substantive exceptions allowing individuals admission into the U.S., or whether they are merely “window dressing” for a broader categorical ban much different than those imposed by Presidents Carter and Reagan. Along these lines, Katyal directed the court’s attention to the case of a 10-year-old Yemeni girl with cerebral palsy who was denied medical entry into the United States. Justice Sotomayor questioned Mr. Francisco about the girl to which he responded that he was was not familiar with the case

Interestingly, the government revealed that to date, 430 exceptions (or case-by-case waivers) have been granted, though he stopped short of saying how many have been requested or rejected. Mr. Francisco also revealed that consular officers automatically check visa applications to see if they qualify for an exception/waiver. This is in direct contrast to what NIAC has heard from visa applicants who have received form letters and categorical denials of visas without being considered for waivers.

The Supreme Court will likely issue its decision by the end of June. In any event, other components of the broader Muslim Ban policy will remain no matter what the court decides. NIAC will continue to fight back against ‘extreme vetting’ and the sham waiver process in court, and on the Hill. Congress must immediately put an end to its shameful side-stepping and finally fulfill its duty to fully repeal this hateful and bigoted ban.

NIAC and the Coalition’s Fight Against the Muslim Ban

Today, after a more than a year of fighting back against the Muslim Ban, our community finally got our day in the highest court in the United States, which will decide whether a Muslim Ban will become the official immigration policy of our country.

As you recall, in one of President Trump’s first acts as president, he attempted his first Muslim Ban on January 27, 2017. On March 6, 2017, it was replaced with another executive order after successive losses in court. The embattled second Muslim Ban was again replaced with a third attempt, which also included an obscure and highly subjective case-by-case waiver process. The National Iranian American Council (NIAC) challenged every version of this unprecedented and unconstitutional ban in court.

But the Trump Administration did not stop there. As litigation was running its course as to the executive orders and proclamation, the Administration was busy looking for alternative means to accomplish the stated goal of a “total and complete shutdown of Muslims entering the United States.”

In May, NIAC was alarmed to learn of a new ‘extreme vetting’ policy proposal put forth by the Department of State which granted sweeping authority to consular officers to deny visas to applicants from the same Muslim-majority countries designated by the Muslim Ban. In response to this obscure and secretive new policy, NIAC sent a Freedom of Information Act (FOIA) request to the State Department requesting they produce documents related to ‘extreme vetting’ so that we could evaluate whether this administrative measure was being used as a “backdoor Muslim Ban.”

The State Department never produced the requested documents, so last week, NIAC sued.

In addition to court challenges, we made our voices heard in the halls of Congress. We told members of Congress about the stories we heard from the Iranian-American community of families being torn apart, patients not receiving life-saving medical treatment, and the world’s brightest students and researchers being stuck in a constant state of uncertainty. We told them about the drastic drop in visas issued to Muslim-majority countries by the Administration.

But more significantly, NIAC shared with Congress how the obscure case-by-case waiver process – which grants unrestricted discretion to consular officers with no set guidelines, policies, procedures or criteria on how to evaluate visa applicants – is being utilized to issue mass denials to visa applicants from Muslim-majority countries. Data produced in response to a congressional inquiry revealed that only two waivers had been issued, with this figure later being adjusted, without verifiable date, to 450 waivers.

For the past several months, NIAC has been voicing the concerns of the Iranian-American community on Capitol Hill and circulating a draft of reporting requirement legislation which we produced that, if enacted into law, would impose a requirement on the Trump Administration to lift the veil of secrecy surrounding the waiver process, extreme vetting, and the broader Muslim Ban policy and how they are all being implemented.

Irrespective of how the Supreme Court decides the Muslim Ban case later this year, Congress must step up and fulfill their duty as a co-equal branch of government and fully repeal the Muslim Ban and all of its various components.

The Washington Post: For Muslims, Supreme Court’s ruling on entry ban will be statement of America’s values

NIAC Frustrated with Muslim Ban Being Allowed Back into Effect

FOR IMMEDIATE RELEASE
Contact: Shayan Modarres
Email: smodarres@niacouncil.org
Phone: (407) 408-0494

Washington, D.C. – The National Iranian American Council (“NIAC”) issued the following statement on the heels of a decision by the Supreme Court of the United States moments ago to lift injunctions in the Fourth and Ninth Circuits, allowing the Trump administration to implement the embattled third version of the president’s Muslim ban pending appeals:

“We are deeply frustrated with the Supreme Court decision today allowing the third version of the Muslim ban to go back into effect. While we understand this is not a decision on the merits, every month since the inception of the Muslim ban in January, members of the Iranian-American community and other affected communities have remained in legal limbo and have been forced to ride an exhausting emotional roller coaster that has kept families apart. There have been brief windows of opportunity for the affected communities to apply for visas on behalf of their spouses, fiancés, grandmothers and grandfathers and other close family to join them in the United States, only to have that window shut just as quickly.

“The unintended consequences of varying court decisions may unfortunately be shared with the original intent of the Muslim ban: to discourage Muslims and Iranian Americans from traveling to the United States. Iranians, who have been told to quickly apply for visas and pay related fees while the Muslim ban was enjoined by the Fourth and Ninth Circuits, now have to relive the painful reality that they are unwanted in America – that they are viewed as inherently dangerous and, potentially in the future, would be viewed as second class citizens. NIAC cannot in good conscience continue to advise members of our community that their family members should continue paying visa fees and submitting applications for visas while the risk of being banned still exists.

“Our recommendation to Iranian-Americans whose family members might be seeking visas is to not apply for visas until a Supreme Court decision is made on the merits. Be advised, even if individuals are in possession of a valid visa that is not an M, F, or J visa, they may still be blocked from entering the United States.

“Iranians should be aware that they may not be allowed to enter the U.S. as a result of this decision, even if they travel on a valid U.S. visa.

“Days from now, oral arguments will be heard in the respective appellate courts. We remain optimistic that the judges in the Fourth and Ninth Circuit Courts of Appeal will agree that the third version of the Muslim ban suffers from the same unconstitutional taint as the president’s first two attempts.”

###

New Muslim Ban Imminent

Travelers, and family members of travelers from countries targeted under the Muslim ban, should be prepared for possible confusion, delay, and disruption as a result of a new Muslim ban that may be unveiled this weekend.

According to our information, the Trump administration’s Muslim ban targeting Iran and five other Muslim-majority countries could be replaced with a new ban as early as today. Details of the newest version of the Muslim ban are still unknown, but according to reports, restrictions could differ on a country-by-country basis. Additionally, the Muslim ban 3.0 is expected to be expanded to target travelers from other countries such as Central America or South Asia.

NIAC is continuing to monitor the situation and is working closely with partner advocacy groups to respond effectively to any new Muslim ban. We encourage all travelers and family members of travelers to read our Know Your Rights resource to ensure that you are fully informed of your rights at U.S. airports across the country. A Farsi version of the Know Your Rights is also available here.

If you believe your rights have been violated or you have questions about the Muslim ban 3.0, please contact me via email at: smodarres@niacouncil.org.

Sunday marks the conclusion of the 90-day policy review period under the original version of the travel ban. If the Trump Administration does issue a new Muslim ban, it may have a significant impact on the Supreme Court case – and the articulated “bona fide relationship” standard – ahead of the October 10 oral argument. The specific impact of a Muslim ban 3.0 is still unclear as we have yet to obtain text of a reported replacement ban.

NIAC will continue to provide updates as new information becomes available.

Shayan Modarres, Esq.
Legal Counsel

NIAC Joins Amicus Brief to Protect Immigrants’ Citizenship

Washington, DC – NIAC has joined 73 other organizations to file an amicus brief in a case before the U.S. Supreme Court that threatens to allow the government to strip individuals of their U.S. citizenship for making minor, immaterial misstatements during the immigration process. Traditionally, stripping naturalized citizens of their citizenship has been reserved for individuals who lie about involvement in terrorism or genocide rather than minor immaterial misstatements.

The U.S. Court of Appeals for the 6th Circuit has held that a naturalized American citizen can be stripped of their citizenship in a criminal proceeding based on an immaterial false statement. This departs from the holdings of the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits. The case is set to be argued before the US Supreme Court on April 26, 2017 in a case known as case is Maslenjak v. U.S.

If the Supreme Court accepts the 6th Circuit’s holding, the citizenship of naturalized Iranian Americans could potentially be targeted by overzealous officials if they can find evidence of minor misstatements during the naturalization process.

Through this action, NIAC is taking a stand with other organizations that are committed to protecting the diversity, civil rights, and tolerance that are core American values. These values are under assault and many members of our community are particularly vulnerable.

Other organizations that signed include the Southern Poverty Law Center, National Council of Jewish Women, National Association of Social Workers, Council on American Islamic Relations, HIAS Pennsylvania, League of Women Voters US, and the Hispanic National Bar Association.