THE TORCH: CONTENTSBy Subha Varadarajan, Muslim Ban Campaign Legal & Outreach Fellow
APRIL 2, 2018

On April 25, 2018, the U.S. Supreme Court will hear arguments on whether one of the latest versions of Trump’s Muslim ban exceeds the authority of the president under federal immigration law and whether it violates the U.S. Constitution by discriminating against a certain religious group. Unlike prior versions of the ban, this iteration is permanent and was allowed to go into full effect until the Supreme Court issues a final ruling.

A Muslim ban is definitely in effect. Every day it’s separating loved ones.

After a prior version of the Muslim ban failed to make it to the Supreme Court because it expired, a later version, Muslim Ban 3.0 — which indefinitely bans most nationals from six Muslim-majority countries from entering the U.S. — has faced new challenges. After the ban was largely blocked by federal district courts, the Trump administration appealed these cases to the Ninth and Fourth Circuit Courts of Appeal.

On December 4, 2017, before the circuit courts heard the case, the Supreme Court issued an order allowing the Muslim Ban 3.0 to go into full effect until it issues a final ruling on the case, regardless of how the circuit courts ruled. This means that for nearly four months, we have had a full version of a Muslim ban in place for the first time since January 27, 2017, when Muslim Ban 1.0 was implemented. In that time, countless families have been separated because of a clearly discriminatory policy.

While the Supreme Court did not comment or rule on the legality of the ban, its decision to allow the ban to go forward for the time being confirmed the fears of Muslims here in the U.S. and around the world, and reinforced a feeling of uncertainty for those unable to make plans that many of us take for granted.

The lower courts rejected this latest Muslim ban. Now it’s up to the Supreme Court to decide.

On December 22, 2017, the Ninth Circuit Court of Appeals, in Hawaii v. Trump, affirmed that the latest version of the Muslim ban is still illegal, because it “once again exceeds the scope of [the president’s] delegated authority.” The Ninth Circuit issued a preliminary injunction temporarily blocking the policy from being applied to those who have a “bona fide relationship” with people or institutions in the U.S. The Trump administration appealed this decision to the Supreme Court. The court announced its decision to hear the case on January 19, 2018, and later set a hearing date for April 25, 2018.

On February 14, 2018, the Fourth Circuit Court of Appeals, which heard several challenges to this version of the Muslim Ban, including IRAP v. Trump and Zakzok v. Trump, also rejected the ban and also issued a preliminary injunction, ruling that it violates the U.S. Constitution’s Establishment Clause. The Fourth Circuit found that the policy is “unconstitutionally tainted with animus toward Islam” and that “an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation — to exclude Muslims from the United States.”

While the Supreme Court has not yet decided if it will join this case with the Hawaii case and hear both of them at the same time, it has said that it wants to hear arguments on both the statutory claims — whether the ban violates the president’s authority under federal law — and the constitutional ones — whether the ban violates the Establishment Clause because it discriminates against a particular religious group.

Unfortunately, despite these two circuit court opinions rejecting large parts of the ban, the Supreme Court’s prior order still allows the ban to remain in effect until it issues a final decision.

Need a reminder of what all the different Muslim Bans are and whom they impact? Check out our explainer that gives you an at-a-glance overview.

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More on the Trump administration’s discrimination against people from Muslim-majority countries:

• Supreme Court Allows Discriminatory Muslim Ban to Stand
• Government’s Supreme Court Argument Tries to Divorce from Trump’s Own Words and Record His Ban on Travel from Muslim-majority Countries
• Trump’s Ban As Experienced by Yemeni-Americans
• A Year in Review: Reflections on Resistance against the Muslim Ban
• Muslim Ban 3.0 (and 4.0): How We’re Fighting in the Courts, in Congress and in Our Communities
• Trump’s Muslim Ban (on our Immigration Enforcement Issues webpage)