Almost a year ago, the U.S. Supreme Court upheld President Donald Trump’s executive order restricting entry of foreign nationals from several countries identified as possible sources of terrorism.
The narrow 5-4 Trump v Hawaii ruling on the so-called Muslim Ban (most of the countries targeted under the ban were predominantly Muslim) sent a wave of alarm through immigration and civil liberties advocates across the country. But a paper scheduled for publication in the University of Iowa’s Journal of Race, Gender and Justice argues that the ruling still leaves open the possibility of successfully defending individuals who are affected by the ban.
“Courts may be more inclined to rule in favor of particular individuals and their particular case…rather than [through preparing] a class action challenging a nationwide policy,” wrote the paper’s author, Avidan Cover, a professor at the Case Western Reserve University School of Law, and Director of the Institute for Global Security Law & Policy.
In his paper, “Quieting the Court: Lessons from The Muslim-Ban Case,” he set out strategies which he suggested could soften the impact of the ruling without mounting a frontal attack, given the likelihood that the present Court would not be inclined for the moment to accept any effort to reverse government policy.
Legal activists have a better chance if they build cases in the lower courts based on the specific harms done to individuals by anti-immigration policies.
“Courts may be more inclined to rule in favor of particular individuals and their particular case rather than [by mounting] a class action challenging a nationwide policy,” Cover wrote.
In Trump v Hawaii, the Court found President Donald Trump’s revised ban on certain nationals entering the U.S. from Iran, Libya, Syria, Yemen, North Korea, Venezuela, and Somalia to be constitutional and a fair exercise of his executive powers.
Cover called the Court’s decision a dangerous precedent, because it allows for the restriction of freedom of a group of people under the guise of national security. The justices also failed to address the impact the policy would have on American Muslims, he added.
“The…case confirms the judiciary’s endorsement of the executive branch’s increasing aggrandizement of power in the national-security and immigration context, resulting in violations of non-citizens’ freedoms and interests,” Cover wrote.
“It is no anomaly; rather, the Muslim-Ban case is a warning of what is to come.”
The best long-term strategy, he said, was to change the political climate—starting with voting President Trump out of office in 2020.
Advocacy groups should incorporate electoral strategies within their general efforts at “transforming the national security-immigration space,” Cover wrote.
But while it was important to elect a president who favors a more inclusive immigration policy, fighting federal mandates at the local level was equally critical, the paper said.
Prof. Cover pointed to the successful litigation in lower courts upholding sanctuary cities.
“The support for these measures, while often regionalized or localized, indicates fertile ground for some popular advocacy,” Cover said.
Prominent civil rights groups should also allow more non-hierarchical movements, similar to Black Lives Matter and Occupy Wall Street, a seat at the table. The tactics of these groups can be a valuable alternative to legal discourse, he wrote, arguing they can shift the public’s mindset in favor of marginalized groups.
“The embrace of refugees and protests against the Muslim Ban—often spearheaded by community and religious groups—offers a vision of American society distinct from the Court’s highly statist and executive-led structure, which discounts the rights of non-citizens,” Cover said.
Cover noted the success of the Shepard Fairey’s “We the People” poster, which illustrated a woman with a hijab decorated with the American Flag, in associating the image of Muslims with being American, despite the government’s policies that attempt to “otherize” this group.
Public opinion can also be shifted through the association of the family with the American national identity because both citizens and noncitizens have familial relationships.
“Re-conceiving and strengthening American identity along familial lines may prove more effective in protecting out-groups, appropriating from the family unit shared characteristics that influence personal identity, community, morality, and religious beliefs.” Cover said.
“Such a basis for identity may foster greater acceptance of non-citizens, in particular those in familial relationships with U.S. citizens.”
Read the full paper here.