//  6/27/17  //  Commentary

This morning, I published an op-ed in The Guardian with my reaction to yesterday’s travel ban opinion by the Supreme Court.  In the immediate wake of the decision, many who oppose Trump’s travel ban hurried to cast the Supreme Court’s decision as essentially a complete victory for the plaintiffs.  I understand this argument when you view the case in terms of doctrine or theory. But this case is about people, and when you understand what it is like to be a Muslim at the US border today and how this case might make it even worse, it stops looking like a complete victory.    

Here is an excerpt from my op-ed:

To understand the impact of the supreme court’s decision, it is important to appreciate what it is like to be Muslim in the US today: that your religion exposes you to the all-but-accepted reality of routine deprivations of liberty and privacy each time you present yourself at the border. 

This discrimination (whether subconscious or otherwise) is an unwritten condition of your right to be in this country. It is the consequence of your apparent offense of Flying While Muslim.

For this reason, many (if not most) Muslims today approach basic interactions at the US border with trepidation, out of fear that border officials will (again, perhaps subconsciously) exercise their discretion to impose secondary screening, invasive questioning or intrusive searches based on their religion. This fear is rational – if it is not based on firsthand experiences, it is likely based on those of family or friends. 

And it is rational even when the strength of your connection to the US means that you cannot lawfully be denied entry. There are myriad examples of American Muslims – people who have an unqualified and irrevocable right to enter the US – being met at the border by practices such as discriminatory religious questioning, invasive cellphone searches and even temporary denial of entry.

The supreme court’s new distinction creates yet another discretionary determination that awaits certain Muslims at the border. If you are from one of the affected countries, an individual border official will decide whether you have a sufficiently “credible” or “bona fide” relationship to someone or something in the US, such that you avoid application of the entry ban. 

I went on to write that, as a result of the Supreme Court’s decision, Muslim people—even those who are clearly intended to be exempt under the Court’s test—will inevitably be exposed to further discriminatory questioning (again, subconsciously or otherwise) and, at least in the first instance, be subject to the whim of the person who meets them at the border.

Obviously, this wasn’t a complete victory for President Trump, either.  His claim that he obtained a unanimous, 9-0 victory from the Court is mere claptrap (on his reasoning, he also obtained unanimous complete wins in the Fourth and Ninth Circuits, each of which also narrowed the injunctions against him). But the Court may have given daylight to some of the prejudice and intolerance that is the very hallmark of the President’s campaign against Muslims.  

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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

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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!

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Michigan Law School