We just blocked Muslim Ban 3.0! Overnight, Judge Theodore D. Chuang, the federal judge who issued one of two nationwide injunctions against Muslim Ban 2.0, issued another nationwide preliminary injunction against Muslim Ban 3.0, going beyond the Temporary Restraining Order issued by Judge Watson in Hawaii. The implementation and enforcement of Muslim Ban 3.0 will remain blocked for the duration of the lawsuit filed by the National Iranian American Council, Muslim Advocates, Americans United for Separation of Church and State, and Covington Burling LLP, on behalf of Iranian Alliances Across Borders and individual plaintiffs challenging the president’s September 24 Proclamation.
One thing remains clear through the disorienting cloud of litigation surrounding the president’s embattled attempts to fulfill a campaign promise of banning Muslims: nothing is preventing President Trump from trying new versions of his Muslim ban over and over again until he achieves a paradoxically constitutional Muslim ban.
In this likely never-ending cycle of unconstitutionality, the president will issue a remixed Muslim ban with subtle cosmetic changes, litigation will follow, and a new, rewritten Muslim ban will be promptly introduced before a binding Supreme Court decision, restarting the entire cycle again.
In this political era of villainizing refugees and throwing paper towels to suffering and starving U.S. citizens, perhaps the Congressional inaction is unsurprising. Congress has enabled the president by repeatedly failing to intervene and take up legislation like the Statue of Liberty Values Act 2.0 (or SOLVE Act 2.0) which would have rescinded Muslim Ban 2.0. In many cases, Congressional members have not even issued a single public statement about the Muslim bans in the past ten months. Silence is acquiescence.
Trump’s original attempt at a Muslim ban has undergone different rounds of edits, but the two core components remain the same. The first, commonly referred to as the “travel ban” restricts the entry of certain foreign nationals into the United States; the second, commonly referred to as the “refugee ban,” limits the number of refugees allowed into the United States, irrespective of country of origin.
Two challenges to the second version of the Muslim Ban came before the Supreme Court in June, both resulting in District Court judges issuing nationwide halts on the ban – International Refugee Assistance Project (IRAP) v. Trump, and Trump v. Hawaii.
In the first opportunity for the Supreme Court to weigh in on the constitutionality of the Muslim ban, the nine Justices allowed the travel ban to go into effect for travelers who lacked a credible claim of a “bona fide relationship to a person or entity in the United States,” and lifting the stay on the refugee ban entirely. This was a telling indication that the first part of the Muslim ban is being viewed by the Supreme Court Justices with considerably greater constitutional skepticism than the second part.
Last Monday, a brief one page order handed down by the Supreme Court directed the Fourth Circuit Court of Appeals to dismiss the IRAP v. Trump as moot without expressing any view on the merits of the case. Trump v. Hawaii will likely face the same fate once the 120-day suspension of refugees entering the United States also expires next month.
By dismissing the writ of certiorari as “improvidently granted” in IRAP v. Trump, the Supreme Court could have removed the case from their docket while leaving lower court decisions undisturbed. Instead, the Supreme Court – with the exception of Justice Sotomayor dissenting – granted the president a blank slate on a Muslim ban.
The president has turned his campaign promise into a video game, like Muslim Ban 3 for Nintendo, hitting the reset button every time he fails to reach a desired outcome. But this is not a video game. Real people, real families, real lives are hurt with every version of the same hateful, bigoted Muslim ban. Muslim Ban 3.0 may be halted for now, but Congress must pull the plug on Trump’s unconstitutional Muslim ban for good before he issues Muslim Ban 4.0.