Travel Ban: Muslim-Majority Country Restrictions Through Three Iterations

Overview

The travel ban's origins were explicit. In December 2015, Trump called for "a total and complete shutdown of Muslims entering the United States." When he took office, Rudy Giuliani went on television to say Trump had asked him to figure out how to do this legally.

The first attempt created immediate chaos. The second was also blocked. The third was upheld by the Supreme Court, which specifically declined to consider whether the national security justification was pretextual.

The Three Orders

Three successive orders reflected an iterative process of adding procedural justifications while keeping the substantive result. The first was rushed into effect on a Friday evening with no agency coordination — green card holders were included, airlines were not told what to do, hundreds were detained, and courts were issuing stays before midnight.

The second removed the most obvious legal problems. The third added a systematic national security review process. Each version was defended as security policy rather than religious discrimination.

The Record

The problem courts faced was the record. Trump had called for a Muslim ban. Giuliani had publicly stated Trump asked him to make a Muslim ban legal. Trump's own national security advisor had said the security review showed no specific threat from the listed countries.

Courts in the Fourth Circuit and Ninth Circuit held this record established discriminatory intent. The Supreme Court majority held it didn't matter for purposes of their analysis. Justice Sotomayor's dissent disagreed, drawing the explicit parallel to Korematsu — the Japanese internment case that had stood unrebuked for 73 years.

The majority opinion in Trump v. Hawaii formally repudiated Korematsu as wrongly decided — and then upheld the ban.