//  5/2/17  //  Commentary

As cases challenging Trump’s attempted Muslim ban proceed, there's a risk that horrible things Trump has said about American Muslims—and has promised to do to them—will be sanitized and glossed over. This has already started happening, for many reasons: the Government’s strained effort to minimize Trump’s bigotry; the pressure to fit legal arguments into neat packaging on appeal; the extraordinary and disorienting volume of offensive statements by Trump; and the public’s short memory.  

In amicus briefs filed in the Fourth and Ninth Circuits (authored by Amir), the MacArthur Justice Center has documented Trump’s immense record of hatred toward Muslims. Compiled into a single document, that record is startling in scope and in substance, and must not be overlooked. There are many amicus briefs in the Muslim Ban cases, but this one merits a close read. It tells a powerful story and provides vital context.

Previously on this blog, we have each confronted one major misconception about challenges to the Muslim ban: That Trump’s discriminatory motive turns exclusively on statements he made before he was President (see here and here). As we separately explained, Trump’s post-election and post-inauguration statements unquestionably demonstrate his discriminatory purpose. (An amicus brief authored by Joshua on behalf of constitutional scholars further develops this point.)

Now, in a series of posts, we will address head-on three of the most common misconceptions (or mischaracterizations) of what Trump has said, both about Muslims and his executive orders.

In this post, we address the suggestion that Trump’s comments about Muslims are merely one-offs linked to heated political rhetoric. We show that the most recent order is part of a long-lived, multi-faceted, and vicious onslaught against Muslims. In our second post, we will confront the incorrect notion that Trump’s animus is directed only towards non-citizen or foreign Muslims, as opposed to the American Muslim community.  And in a third post, we will take on the Government’s comparison between Trump’s promises to ban Muslims and “imprecise" campaign talk.  

The Broad Scope Of Trump’s Crusade Against American Muslims

Some observers of the Muslim ban litigation have mistakenly noted that the plaintiffs seek to prove Trump’s animus based entirely on a single promise that Trump made while campaigning: to ban foreign Muslims from the U.S.

While it's true that Trump specifically promised to ban Muslims from entering this nation (more on that in a future post), it’s important to understand that Trump’s executive order follows directly from his long and targeted crusade against the American Muslim community. In our view, that context shifts the burden of proof in this litigation to Trump’s defenders: if they are to prove that Trump was not motivated by animus, they must reckon with Trump's conduct in many settings and over a lengthy period.  

Trump’s attack on American Muslims began with consistent and deliberate efforts to vilify them, which even included the dissemination of false propaganda to raise fears about the Muslim religion. Well before he ran for President, Trump began describing Muslims as a “problem” and claiming that the Koran teaches “tremendous hatred.” Trump has reiterated those views dozens of times, expressing the dangerous belief that no distinction can be made between radical Islam and Islam itself. Even further, Trump has repeatedly told horrific lies plainly intended to trigger fear of American Muslims—for instance, claiming that he personally witnessed thousands of Muslims celebrate on the rooftops in New Jersey as the World Trade Center came down. 

Trump has also routinely equated being Muslim with being a terrorist, suggesting to crowds that terrorism would go away if the wrongdoers were executed with bullets dripped in pigs’ blood. (This sort of dog whistling continues in the executive order itself, which mandates a study of “honor killings” in the United States; that practice is exceptionally rare here, but is often cited by right wing anti-Muslim activists as compelling proof of the impending ‘Islamization’ of America.)

Beyond his effort to generate widespread fear of the Muslim religion, Trump has explicitly pledged to curtail the rights of American Muslims in several ways. For example, Trump promised to engage in suspicionless surveillance and warrantless searches of American Muslims, calling the profiling of Muslims “common sense” and stating that there was “no choice” but to do these things. He even promised that he would try to shut down mosques throughout the U.S., claiming that they are the source of “absolute hatred” and, again, that there was “absolutely no choice.” And he advocated forcing all Muslims to register with the U.S. government, not even pretending to disown comparisons to similar registries created by Nazis prior to World War II.

So, yes, Trump also promised to ban Muslims from entering the United States—and did so with remarkable specificity. But to fully appreciate the undeniability of Trump’s discriminatory motive, that promise must be situated within his broader crusade against the American Muslim community. In following through on his animus-laden campaign promise, the Muslim Ban not only manifests his improper intent, but also perfectly tracks dozens of other anti-Muslim statements that Trump made during the campaign, after being elected, and post-inauguration. 

It’s time to set aside the notion that these cases are all about his campaign promise. They’re not. They never were. That promise is just the tip of the iceberg.

In our next post, we’ll address the false impression that Trump’s animus is exclusively limited to non-citizen or foreign Muslims. 

Deferred Reaction To the Courts

6/22/20  //  Commentary

Democratic and Republican responses to the DACA decision illustrate the different focus the two parties put on the federal courts.

Leah Litman

Michigan Law School

Versus Trump: Should Vulnerable Detainees Be Released?

3/27/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss a lawsuit in Seattle, Dawson v. Asher, requesting that several vulnerable people in immigration detention be released. They discuss the legal standard for detention, why detention centers are particularly dangerous places, and what courts will be balancing when they consider these requests for release. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Blame Game

2/18/20  //  Commentary

The administration often tries to foist blame on the courts for its politically unpopular policies--or to have the courts effectuate its politically unpopular policies for the administration.

Leah Litman

Michigan Law School