By Asma Husain
Associate Editor, Vol. 22
On January 27 of this year, newly-inaugurated President Trump issued an executive order temporarily immigration from Iran, Iraq, Syria, Sudan, Somalia, Libya, and Yemen pending a report from the Department of Homeland Security, to be completed within thirty days of the order’s date. Despite singling out only Muslim-majority countries, and despite Trump’s campaign promise of a “total and complete shutdown of Muslims entering the United States,” the Trump administration has refused to characterize the immigration order as a “Muslim ban.” However, the ban impacts predominantly Muslim and Muslim-looking people and contributes to the classification of Muslims as a monolithic race by both the state and popular opinion.
The immigration order is couched in language about national security, but there is no doubt of its intentions to single out Muslim immigrants. A member of Trump’s team during the presidential election, Rudy Giuliani, spoke with Fox News about how Trump told him to craft a Muslim ban that could be carried out legally.
And what we did was, we focused on, instead of religion, danger – the areas of the world that create danger for us. What is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.
Despite Giuliani’s claims, and his confidence in the legality of the order, the administration has offered no evidence linking the seven banned countries to active threats to the United States. The order justifies itself by references to the terrorist attacks of September 11, 2001; however, “no Muslim extremist from any of these places has carried out a fatal attack on the U.S. in more than two decades.” If the ban is intended to protect American citizens from terrorist attacks, it appears badly tailored to effectuate that purpose. And if the order’s stated purpose is not its true aim, then what is actually going on?
Anti-Muslim sentiment is the latest iteration of anti-Asian, Orientalist prejudice that once justified the Chinese Exclusion Act and Japanese internment. This type of prejudice defines various groups as other and puts forth the idea that they will never be able to assimilate into American society. In upholding Chinese exclusion in 1893, the Supreme Court said that the Chinese were “of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country . . . incapable of assimilating with our people.” This fear of the unassimilated has often been tied to national security objectives, including the internment of Japanese immigrants and Japanese-Americans during World War II. The Japanese were described as “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.” There is a persistent pattern of othering immigrant communities as too different to be part of the United States, and declaring them dangerous as a result. “The ‘Muslim terrorist’ fits within this tradition of the permanently foreign Asian American, unassimilable and subject to disloyalty, espionage, and sabotage.” Therefore, when Rudy Giuliani speaks about justifying the immigration order because of danger, he is really invoking a historical legacy of legally-permissible racial prejudice.
The immigration order is not the first American government action to classify Muslims in this way. Counterterrorism measures have re-categorized Muslim and Muslim-looking people as enemy combatants and potential threats in order to justify surveillance, detention, and torture. Oftentimes, individuals are targeted by these measures “not because of a reasonable suspicion that they specifically were linked to terrorism, but rather because of one common characteristic: they were or were believed to be Muslim.” In 2004, the Supreme Court upheld the executive branch’s determination of individuals, including U.S. citizens, as “enemy combatants,” which allowed the state to limit those individuals’ constitutional protections and privileges under international law. National security is doubtlessly a compelling government interest, but the risk lies in using this justification in such an overbroad way that that the enacted measures are not actually achieving the safety they purport to be seeking. And more narrowly-tailored government action has smoothed the way for the current administration’s unfounded selection of various states for the immigration ban, because they are Muslim-majority and not because they are connected to specific threats.
Groups facing such discrimination traditionally have the benefit of constitutional protections. However, the solution may not be as simple as Muslim plaintiffs filing suit and accumulating evidence that they are being discriminated against on the basis of their religion. Studies of religious discrimination lawsuits show that Muslims are significantly less likely to prevail on First Amendment claims than members of other religions. This is because Muslim identity, or perceived Muslim identity, has undergone a transformation in the United States as it has interacted with law and policy. “Muslim” has become an externally applied label that acts more like a race under American law than an affirmatively claimed religious identity. “There has been such a profound racialization of Islam throughout the history of the U.S. that a community’s affiliation or relationship to Islam can, and has in fact, contribute to its exclusion from Whiteness.” And the easier it is to exclude Muslims from American identity, the easier it is to justify measures which are “Muslim bans” in all but official name.
Does it matter, then, that the Trump administration selected seven Muslim-majority nations for the order which have no ties to recent attacks on the United States? Legally, perhaps. After a district court issued an injunction temporarily ceasing enforcement of the immigration order, the administration appealed to the Ninth Circuit. The court questioned the grounds for the appeal, stating that the government submitted no evidence to rebut the states’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years. The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.
The court further considered the aspects of public interest on either side of the case, specifically pointing to “freedom from discrimination.” This court, at least, is pushing back on the rhetorical justifications for the immigration order, and that implicitly also pushes back against the blanket categorization of Muslims as a threat.
Outside of the courts, however, the ban may continue to feed perceptions of Muslims as monolithic, foreign, and dangerous. The immigration order is an exclusionary act, and it serves to further define Muslim identity both in public perception and under law. “The power of racialization is that the ‘Muslim terrorist’ is imposed upon groups regardless of their subjective wishes.” By declaring every permanent resident, refugee, or visitor from Muslim-majority countries a potential threat, the Trump administration has relied on an existing framework of racialization and vilification of Muslims, and is now further bolstering that framework. Regardless of whether the ban is ultimately found constitutional or enforceable, its declaratory statements have further defined and grouped together countless individuals without their consent. That imposition of identity will continue to have consequences for those caught in the net of anti-Muslim sentiment.
 Trump’s Executive Order on Immigration, Annotated, NPR, http://www.npr.org/2017/01/31/512439121/trumps-executive-order-on-immigration-annotated (last visited Feb. 26, 2017).
 Stephen Dinan, Court: Trump’s ‘Muslim ban’ promise is ‘evidence’ against executive order, The Wash. Times (Feb. 08, 2017), http://www.washingtontimes.com/news/2017/feb/8/court-donald-trumps-muslim-ban-promise-evidence-ag/.
 Amy B. Wang, Trump asked for a ‘Muslim ban,’ Giuliani says – and ordered a commission to do it ‘legally’, The Wash. Post (Jan. 29, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-legally/?utm_term=.a0a834094be5.
 Trump’s Executive Order on Immigration, Annotated, supra note 1.
 Greg Myre, Trump’s Immigration Freeze Omits Those Linked to Deadly Attacks in U.S., NPR (Jan. 27, 2017), http://www.npr.org/sections/parallels/2017/01/27/511861645/trumps-immigration-freeze-omits-those-linked-to-deadly-attacks-in-u-s.
 22 Stat. 58, 47 Cong. Ch. 126
 Transcript of Executive Order 9066: Resulting in the Relocation of Japanese (1942), OurDocuments, https://www.ourdocuments.gov/doc.php?flash=false&doc=74&page=transcript (last visited Feb. 26, 2017).
 Fong Yue Ting v. United States, 149 U.S. 698, 717 (1893).
 Korematsu v. United States, 323 U.S. 214, 237 (1944) (Murphy, J., dissenting).
 Neil Gotanda, Race, Religion, and Late Democracy: The Racialization of Islam in American Law, 637 Annals 184, 191 (2011).
 Romtin Parvaresh, Note: Prayer for Relief: Anti-Muslim Discrimination as Racial Discrimination, 87 S. Cal. L. Rev. 1287, 1296 (2014).
 Id. at 1288.
 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
 Gregory C. Sisk & Michael Heisse, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts, 98 Iowa L. Rev. 231, 249 (2012).
 Nagwa Ibrahim, Comment: The Origins of Muslim Racialization in U.S. Law, 7 UCLA J. Islamic & Near E.L.. 121, 123 (2009).
 Washington v. Trump, 2017 U.S. App. LEXIS 2369 (9th Cir. Wash. Feb. 9, 2017).
 Id. at 32.
 Id. at 34.
 Gotanda, supra note 11, at 188.
 David Nakamura & Matt Zapotosky, Revised Executive Order Bans Travelers from Six Majority-Muslim Countries from Getting New Visas, The Washington Post (Mar. 6, 2017), https://www.washingtonpost.com/world/national-security/new-executive-order-bans-travelers-from-six-muslim-majority-countries-applying-for-visas/2017/03/06/3012a42a-0277-11e7-ad5b-d22680e18d10_story.html?postshare=3941488818443063&tid=ss_fb&utm_term=.355ef8cd25d4.
The views expressed herein represent the views of the author only.