The Supreme Court of the United States (SCOTUS) appears as though it may go against previous decisions in lower courts that declared the so-called “Muslim Ban” unconstitutional.
Justice Samuel Alito suggested that there were many other reasons to justify the banning of immigration from the targeted countries that went beyond any connection to Islam.
Here is Supreme Court Justice Samuel Alito questioning Neal Katyal, who argued against the ban in court.
“Mr. Katyal, would any reasonable observer reading this proclamation, without taking into account statements, think that this was a Muslim ban? I mean there are—I think there are 50 predominately Muslim countries in the world. Five countries, five predominately Muslim countries are on this list. The population of the predominately Muslim countries on this list make up about eight percent of the world’s Muslim population. If you looked at the 10 countries with the most Muslims, exactly one, Iran, would be on that list of the top 10. So would a reasonable observer think this was a Muslim ban?”
Katyal responded that if a company were to employ a mix of white Americans and black Americans, but only fire black employees, you wouldn’t rule out the possibility of race having been a motivating factor simply because the company still employs other black individuals.
In other words, just because every single predominantly Muslim country isn’t on the ban doesn’t mean that the ban isn’t motivated at least in part by religious discrimination.
Katyal also raised the issue of the president’s tweets and comments throughout the campaign that support the argument that the ban is prejudicially motivated.
Solicitor General Noel Francisco, arguing the case on behalf of the administration, said that the president’s personal comments regarding Muslims, Islam, and Muslim nations in general should not be of concern due to the review conducted by the president’s cabinet.
“They concluded that the vast majority of the world, including the vast majority of the Muslim world, was just fine, but there were problems with a small number of countries and so imposed pressure, recommended pressure, to help move those countries across the line.” – Francisco
Justice Sonia Sotomayor, however, doubted that the review was conducted without any bias.
“They’ve been told what the outcome of their deliberations must be.” – Justice Sotomayor
While Katyal was faced off with Justice Alito, Francisco was met with equal challenges from Justice Elena Kagan, who picked up on Katyal’s earlier analogy of a company firing only black employees, but changed the subject to one of particular sensitivity for Americans: Jews.
“Let’s say in some future time, a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency, and in the course of that, asks his staff or his cabinet members to issue recommendations so that he can issue a proclamation of this kind, and they dot all the i’s and they cross all the t’s. And what emerges—and again, in the context of this virulent anti-Semitism—what emerges is a proclamation that says, “No one shall enter from Israel.” – Justice Kagan
Francisco summarily answered that if it could be proven that a legitimate security risk were posed by Jews, then the hypothetical president would be within his or her power to implement such a ban, even if the president privately harbored prejudice towards Jewish people.
“If his cabinet—and this is a very tough hypothetical that we dealt with throughout—but if his cabinet were to actually come to him and say, “Mr. President, there is honestly a national security risk here and you have to act,” I think then that the president would be allowed to follow that advice, even if in his private heart of hearts, he also harbored animus.” – Francisco
Considering the state of Israel has been violating the human rights of Palestinians for decades and the U.S. has done nothing to reprimand, curb, or otherwise alleviate that violence, it seems somewhat unlikely to me that any action would ever be taken against Israel by the U.S. government.
This whole exchange is problematic on a variety of levels.
Francisco’s inability to address the question head-on by re-framing it within the issue of national security is a clear indication that he was unwilling to address the obvious policy discrepancies that exist between federal U.S. treatment of Jews and the state of Israel and Muslims and predominantly Islamic nations.
While there is consistent recognition of the tragedy of the Holocaust that was carried out against the Jewish people in Europe, and much emphasis placed on the 6 million lives that were taken, there is equally conspicuous silence surrounding the hundreds of thousands of civilian deaths that have occurred either by direct U.S. involvement or through indirect U.S. support in countries like Iraq, Afghanistan, Syria, and Yemen.
There are dynamics at play here that can only be described as prejudicial.
Let me take a moment here to make a disclaimer: I am in no way, shape or form, demeaning or diminishing the tragedy of the Holocaust. It was a shameful and disturbing display of the very worst humanity has to offer, and I fully recognize, acknowledge, and mourn the lives that were lost.
I do, however, think that it’s important to examine the importance that the U.S. as a nation places on that specific instance of genocide and the country’s simultaneous dismissal of similar genocides carried out at its own direction.
The U.S. has been in the Middle East on and off since at least the Eisenhower administration and consistently since the George W. Bush administration for a total of 61 years of on-and-off-again military intervention.
That is effectively a military occupation that has lasted more than 10 times the length of the German occupation of Poland in WWII.
We have an International Holocaust Remembrance Day and there are Holocaust memorials and museums around the world.
And yet, in the 17 years that we have maintained a consistent presence in Iraq and Afghanistan, and in the six decades that we have been killing people in the Middle East, the only recognition we have of this struggle is one that perpetuates a toxic and prejudicial mindset towards the people that we’ve been bombing for so long.
There are only two things that separate the Jews who died in the Holocaust from the Iraqis, Afghanis, Yemenis, and Syrians who have died in these wars: 1) they were killed by the U.S. and/or U.S. allies rather than by Nazis, and 2) they are Muslim and therefore viewed as threats to U.S. national security interests.
Ironically, the U.S. also rejected hundreds of thousands of Jewish refugees — a shame that we are still living with.
Similarly, we are still trying to make amends as a country for our internment of Japanese Americans.
Every time we have rejected a group of people based on ethnicity, religion, race, or gender identity we have – at least most of us – come to recognize the atrocity and inhumanity of the decision.
If the Supreme Court upholds the president’s notorious Muslim Ban, it will be a stain on the country’s judicial system as severe and unforgivable as the allowance of Japanese internment for the explicit reason that it is clearly rooted in religious prejudice just as Japanese internment was rooted in unsubstantiated fear and racism.
To see the effects of the Muslim Ban firsthand, watch Al Jazeera’s documentary which features U.S. citizen Nageeb al-Omari who was blocked from bringing his daughter with cerebral palsy into the U.S. for medical treatment.
If you’re interested in the ongoing tensions between religious and non-religious folks, or if you’d just like to listen to two people with different points of view have a friendly and respectful discussion for a change, I recommend listening to Ana Marie Cox’s interview with Chris Stedman on her podcast With Friends Like These.