Travel Ban Expansions: From Muslim Ban to Permanent Entry Restrictions

Overview

On December 7, 2015, Donald Trump called for "a total and complete shutdown of Muslims entering the United States." He won the presidency thirteen months later. On January 27, 2017 — a week into his term — he issued the first executive order implementing that shutdown.

The policy went through three iterations as courts blocked successive versions for discriminatory intent. The third version added non-Muslim-majority countries to provide legal cover. The Supreme Court, in a 5-4 decision that Sotomayor compared to Korematsu, upheld it.

The Dissent

Justice Sotomayor's dissent in Trump v. Hawaii is one of the most significant judicial documents of the era. She quoted Trump's statements at length — "Islam hates us," "total and complete shutdown of Muslims" — and wrote that the majority had "wholly bought into the Government's contention that the President's public statements should be ignored."

Chief Justice Roberts's majority opinion, in the same ruling, stated that Korematsu — the 1944 decision that upheld the internment of Japanese Americans — "was gravely wrong the day it was decided." The logical tension between that statement and the majority's deference to a policy whose architect had explicitly called for a Muslim ban was widely noted by legal scholars.

The Real-World Impact

The ban separated families. American citizens with Iranian-born spouses could not bring them home. American permanent residents could not visit elderly parents in Yemen. Refugees who had survived years of conflict and completed multi-year vetting processes were blocked at the airport.

Biden revoked the ban on his first day in office. The families separated during the three-year ban cannot recover the years lost.