Published daily by the Lowy Institute

US Supreme court has a duty to stop Trump's travel ban

History is repeating when a neutral cloak of national security is cast over a policy of discrimination.

(Photo: Pete/Flickr)
(Photo: Pete/Flickr)
Published 8 Dec 2017 

The US Supreme Court on Monday stayed two district court orders, effectively giving the go-ahead to the third version of Donald Trump's travel ban. This is until the federal courts, including possibly the Supreme Court, decide the cases.

As a presidential candidate, Trump had promised to stop Muslims from travelling to the US and in January sought to impose the travel ban. The ban, among other things, suspended the United States Refugee Admissions Program for 120 days, indefinitely suspended the entry of Syrian refugees, and prevented nationals from seven Muslim-majority countries from travelling to the US. The ban caused widespread chaos at airports across the US and abroad, resulting in long-term green card holders being denied entry, visa cancellations, questions about whether dual-US citizens would be denied entry, and painful family separations.

The federal courts eventually halted enforcement of the first ban and in March, the US issued what Trump called a second 'watered-down, politically correct version'. After federal courts prevented enforcement of the second ban, in September Trump issued the present version of the travel ban. Version 3.0 of the Travel Ban retained many of the features of the second ban, but expanded the list of countries subject to the restrictions from six to eight.

The Supreme Court orders essentially defer to the Trump administration's characterisation of its latest travel ban and allows the application of a policy that, from its inception, has targeted a religious minority for discrimination.

Unfortunately, the Supreme Court has been in a similar situation before. In 1889, the court decided Chae Chan Ping v United States, which upheld the exclusion of a Chinese resident of the US, following a move by Congress to tighten the Chinese Exclusion Act that prohibited 'Chinese laborers' from entering the US. The court openly acknowledged the racial animus behind the Chinese Exclusion Act, which reflected the people's earnest petition for 'protective legislation' from the 'Oriental invasion.' Chae Chan Ping has been widely criticised in the US, not least because the court chose to defer to the congressional cry of 'national security' in the face of blatant racial discrimination.

Yet, this is an area the US has found itself in company with others. In 1891, the Judicial Committee of the Privy Council in the UK upheld the exclusion of a Chinese man from Victoria in Australia in Musgrove v Chun Teong Toy, reasoning that foreigners had no legal right to enter British territory. The Privy Council arrived at this conclusion despite the fact that the basis for the man's exclusion was that the colony had determined that 'a large influx of Chinese' was imminent and that 'such influx should be prevented'. For decades, Australia maintained a White Australia policy that served to 'prevent the immigration of persons deemed unsuitable because of their Asiatic or non-European race'. History is replete with examples of discriminatory motives dressed in the neutral cloak of national security.

Though Chae Chan Ping dealt with the race-based exclusion of immigrants, the case is instructive about the dangers of overlooking discriminatory motives in favour of broad deference to the executive branch of government. The Trump administration has made no secret of its desire to target Muslims and other minorities or its desire to severely restrict immigration to the country. Since his election, Donald Trump has abetted a renaissance of white supremacy, motivating neo-Nazis and other extremists to step from the shadows and re-enter mainstream political discourse. Just last week, Trump retweeted far right anti-Muslim propaganda posted by a leader of a British extremist group, earning a sharp rebuke from the UK political establishment.

Yet, Trump would have us believe the travel ban reflects the security concerns of the US and must be allowed to take effect as part of the executive's prerogative to regulate foreign policy and protect state sovereignty. The implication is absurd - that somehow the very existence of the US depends on the ability to categorically discriminate against Muslims as once before it discriminated against the Chinese and even Jewish refugees fleeing Europe.   

In the application to the Supreme Court, the Solicitor General argued that unlike the first two versions of the ban, the administration 'completed a comprehensive, multi-agency review that has identified countries with ongoing deficiencies in their information-sharing and identity-management practices, or other factors that present heightened risks'. In other words, the prior executive orders may have had a discriminatory basis, but now that the administration conducted some sort of administrative review, the court should take the government's word for it and allow this version of the ban to stand.

In allowing the travel ban to take effect, the Supreme Court appears doomed to repeat history. The administration's latest attempt to provide the court with some permissible basis for a policy obviously motivated by improper bias should not stand. The court must look to the statements and actions of the Trump administration and execute its duty to state the law.

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