Jurisprudence

The Supreme Court Made the African Ban Possible

National security is once again being used as a cover for racism.

People hold signs reading "#NoBanAct" and "End the Muslim Ban."
People protest President Donald Trump’s Muslim travel ban, which is now being expanded to include several African nations.
Sarah Silbiger/Getty Images

On Friday, President Donald Trump issued a sweeping proclamation blocking more people, overwhelmingly from Africa, from immigrating to the United States. His targets are nationals from Eritrea, Kyrgyzstan, Nigeria—Africa’s most populous country—and Myanmar, where the Muslim minority is being targeted by genocide. Virtually anyone from these four countries will be banned from immigrating to the United States as of Feb. 21. Additionally, people from Sudan and Tanzania will no longer be eligible to immigrate to the United States through the diversity lottery, which annually grants green cards for up to 50,000 people from nations that send relatively few immigrants to the United States. The ban builds on the three versions of the Muslim ban promulgated by the president in 2017, which excluded millions of people from Muslim-majority nations from entering the United States either for immigration or travel purposes. Like the 2017 Muslim bans, the African ban will continue to tear families apart—permanently separating U.S. citizens from their children, spouses, and parents—and uses vague national security concerns as a fig leaf to demonize millions of people.

The stated rationale for the African ban is national security. In the proclamation, the president states that five of the targeted countries fail to comply with certain information-sharing requirements. The proclamation justifies denying those from Sudan a chance in the diversity lottery because its passport technology is not sufficiently secure. In other words, all six targeted countries do not meet U.S. standards when it comes to vetting nationals for purposes of immigrating to the United States. On its face, that reasoning may seem acceptable.

But as we learned with the Muslim ban, it’s worth looking beyond the words in the proclamation for context. In 2015, while a candidate on the campaign trail, Trump published a “Statement on Preventing Muslim Immigration” that called for a “total and complete shutdown of Muslims entering the United States.” That statement remained on his campaign website until May 2017, several months into his presidency. Both as a candidate and as president, Trump condemned Muslims and never disavowed his hateful statements about Islam.

Trump’s racism against black Africans has been equally clear throughout his presidency. When discussing immigration from Africa and Haiti with a bipartisan group of senators, Trump asked why America would want immigrants from “all these shithole countries” and said that the U.S. should get more people from countries like Norway. When discussing the issuance of visas from Nigeria, the president said that once they had seen the United States, they would never “go back to their huts” in Africa.

When the president promulgates racist immigration policies under the guise of national security, where should we turn for redress? Our first instinct might be the courts. Indeed, when Trump issued the first iteration of the Muslim ban on Jan. 27, 2017, I was among the lawyers who rushed to court and helped to win a nationwide preliminary injunction against the ban the following day. Thereafter, nearly every federal court to consider the first, second, and third iterations of the Muslim ban struck it down. That is, until the U.S. Supreme Court ratified the third iteration of the Muslim ban in June 2018. In a 5–4 split decision, Chief Justice John Roberts wrote in Hawaii v. Trump that the president has expansive authority under the Immigration and Nationality Act to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.” The majority refused to look beyond the language of the president’s executive order for the clear animus motivating the Muslim ban.

Justice Sonia Sotomayor dissented, calling attention to “the stark parallels between the reasoning of” the Muslim ban case and that of Korematsu v. United States, the notorious 1944 decision upholding the internment of Japanese Americans based on “an ill-defined national-security threat” where “there was strong evidence that impermissible hostility and animus motivated the Government’s policy.”

In drafting the African ban, the president’s lawyers were careful. They followed the blueprint set forth in Trump v. Hawaii, invoking the talisman of national security, and taking comfort in the likelihood that the president’s racist statements will not convince a majority on the U.S. Supreme Court to strike down the ban. Together the African ban and Muslim ban collectively restrict immigration from the six newly targeted countries as well as all immigrants from Iran, Libya, North Korea, Somalia, Syria, Yemen, and some from Venezuela. Notably, Norwegians are still welcome.

The Muslim and African bans should remind us how the courts have approved some of the ugliest decisions in America’s immigration history. In 1882, the Chinese Exclusion Act became the first federal law preventing members from a specific nationality from immigrating to the United States and naturalizing. That legislation passed in response to concern about Chinese “immigration … in numbers approaching the character of an Oriental invasion” that would pose “a menace to our civilization.” Subsequent legislation extended the ban on Chinese immigration for years, and in 1902 Chinese immigration was made illegal indefinitely. All efforts to challenge the discriminatory exclusion of Chinese immigrants before the U.S. Supreme Court failed. The Immigration Act of 1924 went further, effectively banning all immigration from Asia and severely restricting immigration from eastern and southern Europe. It wasn’t until 1965, with the passage of the Immigration and Nationality Act, that national origin quotas were abolished and U.S. immigration law lifted its discriminatory bans on those from Asia and eastern and southern Europe.

The African ban is just the latest sign that the administration is using immigration policy to further a racial agenda. The administration has virtually closed the southern U.S. border to asylum-seekers, suspended a visa interview waiver program, hiked visa application fees, punished immigrants who receive certain public benefits, surveilled immigrants’ social media accounts, and denaturalized dozens of U.S. citizens. As history teaches us, we cannot rely on the courts to fix xenophobic immigration policies. Democrats in Congress have introduced the National Origin-Based Antidiscrimination for Nonimmigrants (NO BAN Act), which would repeal the Muslim ban, broaden the Immigration and Nationality Act’s nondiscrimination clause to specifically prohibit religion-based discrimination, and limit executive authority to prevent the president from issuing future bans based on xenophobia. Describing the African ban as “discrimination disguised as policy,” House Speaker Nancy Pelosi has called for movement on the bill in the coming weeks, but the Republican-controlled Senate is sure to kill it. Several Democratic presidential candidates have also denounced the new ban. The election may be the only remaining hope to reverse the drive to wall off America from the rest of the world.