As we pass the third anniversary of the “Muslim ban,” President Donald Trump has said he plans to expand the ban’s reach to even more nations, reaffirming his commitment to the message that Muslims are not welcome in the country and putting even more families at risk of separation.
The human costs of the ban are immense and grow each day that passes. Among other things, the ban tears couples in half and children from their parents. The State Department’s most recent public data — covering the period from Dec. 2017 through Sep. 2019 — show that the ban continues to keep at least 1,313 minor children continents away from their American parents, 3,382 parents away from their American sons and daughters, and 3,464 spouses or fiancés from their U.S. citizen partners.
As Ismail Alghazali, a U.S. citizen and New York resident, testified to Congress in September: “I’ve never even met my daughter. I have never held her in my arms… it’s now been more than a year since I’ve seen my family.”
In one case, Shaima Swileh was barred for more than a year and a half from entering the country to see her 2-year old son, who was dying from a degenerative brain disease. The Trump administration granted her permission after intense public and Congressional pressure. (The infant passed away just ten days after.)
This is intentionally inflicted anguish. The Trump administration and its allies have claimed that banning people like Shaima keeps America safe — but there’s simply no plausible justification untethered to bias.
The people counted as banned in the numbers above, who are first screened as a matter of process to determine whether they would otherwise qualify for a U.S. visa, have already gone through one of the world’s most rigorous visa screening systems without raising any red flags. If officials couldn’t verify who they were, thought they were a safety threat or otherwise weren’t eligible to receive the visa for which they were applying, they would have been denied permission to come to the U.S. — even if there were no ban.
Instead, they are barred solely because of their country of origin and left to navigate an opaque, arbitrary, and potentially illegal waiver process in which applicants are successful just over ten percent of the time.
And when building the policy, the administration apparently suppressed or ignored evidence from within its own Departments of State and Homeland Security that did not support its public narrative that people from the targeted predominantly Muslim countries were dangerous. It also published a 2018 report that misrepresented data to suggest that people in the U.S. who were born overseas pose a disproportionate threat to public safety. Some DHS officials objected to the misuse of the data, and the government later admitted, in response to a challenge, that parts of the report were flawed or could appear biased.
The ban has been exposed time and time again for lacking any national security value. If anything, it is putting Americans at risk. In 2018, more than 50 former national security officials who had served in Democratic and Republican administrations filed a 53-page brief in the Supreme Court stating that the ban would “do serious harm” to national security and other U.S. interests.
Civil rights organizations have been fighting the Muslim Ban for almost as long as it’s been pushed by the administration. On Tuesday, the Brennan Center for Justice and our co-counsel will be in the Fourth Circuit as the court considers whether our lawsuit against the ban, Zakzok v. Trump, can go forward.
In May 2019, the Maryland District Court ruled that our lawsuit could proceed — a lawsuit we have continued to pursue in the wake of Trump v. Hawaii, which let the ban go into effect while making it harder for challenges like our case to prevail. Going ahead with our case would give us the chance to prove in court that there isn’t a reasonable justification for the ban other than anti-Muslim animus.
Congress must join the fight, and Speaker Nancy Pelosi (D-Calif.) seems poised to do so when she announced Monday that the House will consider legislation to repeal the ban in the coming weeks. Our lawmakers must pass the NO BAN Act, which would both repeal the ban and make it harder for future presidents to enact similar measures.
Three years ago, when Donald Trump delivered on his repeated campaign promise to impose a Muslim Ban only seven days into his presidency, people rebelled. Thousands protested across the country. Everyone from former CIA Director Michael Hayden to U.N. Secretary General Antonio Guterres to Kim Kardashian denounced it.
And it worked, initially.
The first ban caused so much chaos that the administration concluded it wouldn’t survive legal scrutiny and withdrew the order. But now, with public attention spread thin, a more carefully engineered version of the ban remains in effect to ensure the “same basic policy outcome,” in the words of White House adviser Stephen Miller.
From its inception, the Muslim ban has had some of the worst elements of various bad Trump administration policies. It tears loved ones from each other, like “zero tolerance” at the southern border; it has been defended by misrepresentation, like the census citizenship question; it represents an erosion of checks and balances, like the president’s declaration of a false emergency.
That said, there’s no guarantee that it’ll be cataloged as a historical wrong rather than operate as a fact of life unless we fight it with the same intensity as when it was first imposed.
Harsha Panduranga is counsel in the Liberty & National Security Program at the Brennan Center for Justice at NYU School of Law.