It took a year-and-a-half, but the president of the United States finally has his Muslim ban.
Okay, it is not technically a Muslim ban, which is how the Trump administration and its lawyers finally convinced the Supreme Court — or a majority of justices thereon — that the law is constitutional.
If there is any good news here, it is that the oft-touted checks and balances of the American system appear to still be working, somewhat. Even as stacked as the judicial branch is with Republicans, the court did rule against the Muslim ban twice and is ostensibly supposed to operate on the basis of legality, not personal values — although it arguably never has according to some scholars.
The bad news, on the other hand, is abundant.
In a 5-4 ruling, the majority decided the third iteration of the executive order limiting travel from Iran, Libya, Syria, Somalia, Yemen, North Korea and Venezuela does not violate the religious freedom principles of the First Amendment. In doing so, Chief Justice John Roberts et al. ignored Donald Trump’s long history of anti-Muslim rhetoric, including his election promise to enact “a total and complete shutdown of Muslims entering the country.”
Writing for the dissenting side, Justice Sonia Sotomayer argued the intent of the law is clearly an effort to uphold that election promise despite the fact it does not mention Muslims specifically and there are (now) two non-Muslim-majority countries on the list.
She called out her colleagues for hypocrisy noting they had no problem considering the spirit of legislation in ruling for a Colorado baker who refused to make a wedding cake for a gay couple but deemed it irrelevant in this case.
Not surprisingly, there is a great deal of unhelpful hyperbole from the extreme side of the opposition conflating the new law with the internment of Japanese-Americans during the Second World War and even with the extermination of Jews during the Holocaust.
This is a long way from that as it does not target Muslim citizens of the United States who are currently in the country. Of course, that doesn’t mean it is not a prelude to more drastic measures.
I am not a fan of slippery slope arguments, though. More frequently, we do not slide to the bottom, but manage to shore it up before worse comes to worst. American voters, for example, typically restore the balance of power in mid-term elections. We will see in a few short months.
That is truly disturbing here, is the ruling’s potential for normalizing fear and hatred of “the other” and what it says about how far America has descended into the rabbit-hole of potential tyranny.
Despotic regimes throughout history have relied on scapegoating to rally support and consolidate power.
If I was inclined to give Trump credit for complex thought, I might conclude that producing something as reprehensible as the first executive order was strategic, that the end goal was always this version, but he wanted to soften up the opposition first. Regardless of whether he was proactively strategizing or flying by the seat of his pants, it is another example of outrageous behaviour normalizing what would have been unthinkable even under previous Republican administrations.
Certainly, the third version of the Muslim ban, on its face, and according to five SCOTUS justices, is less shameful than the previous two. And, while there is still hard-core opposition, polls show enough of the soft opposition is willing to accept this as a reasonable compromise that is politically tenable.
That is how normalization works.
As the 18th century British parliamentarian Edmund Burke observed, “The only thing necessary for the triumph of evil is for good men to do nothing.”
This decision justifies the largely unfounded fear of Muslims specifically, and immigrants in general. It normalizes bigotry in the name of national security.
The human rights abuses currently being visited upon refugees, especially innocent children — and even some American citizens getting caught up in the Trump-induced hysteria — by U.S. Immigration and Customs Enforcement (ICE) would have been unconscionable even a few short years ago.
In addition to abandoning the principles of a nation that once proclaimed to the world “Give me your tired, your poor, your huddled masses yearning to breathe free…” Trump is alienating traditional allies and aligning the United States with autocratic regimes such as Russia and North Korea.
Who is going to stand up to a new world order in which the greatest superpower in history is no longer on the side of democratic values and morality?