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Beyond the Muslim Ban


By Sherally Munshi |
OCTOBER 10, 2018
Sherally Munshi is an Associate Professor of Law at Georgetown University and member of SAADA's Academic Council.
Image from "The Hindu Invasion: A New Immigration Problem" (1907).
President Trump's Muslim ban became the focus of general outrage from the moment it was signed into law in January 2017. Tens of thousands of Americans gathered at airports to protest the order. Lawyers were quick to file challenges and, within a day, obtained orders suspending implementation of the ban. Nobel laureates, university presidents, tech executives, and former secretaries of state condemned the Muslim ban. Even Dick Cheney declared that the ban "goes against everything we stand for."

Of course, this was not the first time that the United States targeted a particular group for exclusion. In 1882, the United States Congress passed the Chinese Exclusion Act, barring the entry of labor migrants from China for a period of ten years. Over the course of the next decade, Congress passed a series of laws tightening restrictions against Chinese migration. After a wave of violence against Chinese migrants in more than 40 cities across the Pacific Northwest, Congress extended the original ban for another ten years and established a registration system, one that created the framework for criminalizing and eventually expelling Chinese immigrants already living in the United States. The Chinese Exclusion Act holds the distinction of being one of the first laws to restrict immigration on the basis of racial or ethnic difference. In the Chinese Exclusion Cases (1889-1893) perhaps more astonishingly, the Supreme Court announced that Congress has an "absolute and unqualified" right to exclude and deport foreigners, "however it might see fit." Characterizing Chinese immigration as an "Oriental invasion," the Court furnished its ruling with what has proven to be an extraordinarily durable rationale for excluding immigrants—national security.
Read more about the Asiatic Barred Zone in "Shadows of the Past" in Tides.
The Muslim ban—particularly the iterative dissembling through which it finally came to pass judicial scrutiny this past June—is painfully reminiscent of efforts to pass a "Hindu" ban a century ago. Beginning in 1910, exclusionists in Congress sought to pass a Hindu Exclusion bill, roughly modeled after the Chinese Exclusion Act. Though the Supreme Court, in the Chinese Exclusion Cases, maintained that Congress had sweeping authority to restrict immigration—“however it may see fit”—a decade later, exclusionists in Congress found themselves somewhat frustrated in their efforts to enact another crudely racist form of exclusion.

One problem was that Indians were British subjects and, by treaty, guaranteed the same rights of entry as other British subjects. Some United States officials hoped that British administrators might cooperate in restricting emigration from India—as the Japanese had recently done with the Gentleman’s Agreement of 1907—but British officials were reluctant to do so. British attempts to restrict Indian migration to South Africa had enraged Indians across the diaspora, galvanizing the early movement for decolonization and independence.

Congressmen searched for a way to exclude Indians without naming them. Exclusionists proposed restricting immigration to individuals eligible for naturalization, which, according to the Naturalization Act of 1790, was restricted to “free white persons." After the Civil War, the Naturalization Act had been revised to extend citizenship to emancipated African Americans but to exclude Asian immigrants. The proposed citizenship test, exclusionists suggested, might exclude Indians, among other Asians, but without naming any group. The problem with their proposal, however, was that ethnologists and linguists had begun to suggest that Indians belonged to the same racial family as other Europeans. It wasn’t until 1923, in United States v. Bhagat Singh Thind that the Supreme Court declared that "Hindus" were racially disqualified from citizenship. In a unanimous decision, the Court explained that notwithstanding the speculations of social scientists, the "racial difference" of Hindus was so obvious to the average white American that "the great body of our people instinctively recognize and reject the thought of assimilation."1

A third problem was the ascendance of anti-imperial and anti-racist movements around the world, transforming the political and expressive landscape. Japan’s defeat of the Russian navy at the start of the twentieth century played a critical role in this transformation. For the first time, a non-European power had challenged Anglo-American supremacy in the Pacific. This, in turn, energized anti-imperial movements throughout Asia and Africa. With its newfound respect among European and American powers, Japan had begun to challenge the passage of discriminatory laws in the United States, and the more circumspect members of Congress preferred to avoid international conflict.

Eventually, in 1917, exclusionists, with their remarkable tenacity, succeeded in passing a law barring anyone traveling from a defined "Asiatic Barred Zone." The particular brilliance of that law—in the minds of some exclusionists, at least—was that it effectively barred 'Hindus' without mentioning Hindus 'by name.'2 As such, Congressman Raker asserted, the law would avoid diplomatic controversy, it would give offense to no one. This sort of veiling troubled some exclusionists, who thought the entire point was to exclude certain races. Observing that the Barred Zone clumsily bisected Russia, one Congressman complained, "I fail to grasp the logic. If we want to exclude the Tartar Race, let us exclude it. If we want to exclude the Mongolian, let us exclude him…" Moreover, he argued, the proposed law "is not at all to the point because it would exclude men geographically and not racially."3 Attempting to placate his fellow exclusionists, Congressman Raker, the most ardent proponent of a Hindu ban, explained that by recasting a racial bar in geographic terms, Congress had "taken another ground," one that would make the law "stronger." As he said, "we ought to make our laws sufficiently strong as to … exclude all Asiatic laborers now, so that there will be no question in the future."4 Of course, it is that confidence—that there would be no question in the future—that should goad us in the present.
Via Library of Congress
Last February marked the 100-year anniversary of the Asiatic Barred Zone act. Many of us woke to news of family members detained at airports, students refused permission to board planes, long-suffering refugees returned to refugee camps. Even as the President signaled to his supporters that he had made good on his campaign promise, facing public protests and legal challenge, the President and his advisors scrambled to recast the Muslim ban in other terms, insisting that the Muslim ban was not a Muslim ban at all. The first iteration of the Muslim ban, recall, suspended the entry of all foreign nationals traveling from seven Muslim-majority countries. The stated purpose of the ban was to "protect the American people from terrorist attacks by foreign nations." As the President explained, "I’m looking at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. And I’m okay with that because I’m talking territory instead of Muslim." When asked how the President arrived at the list of seven countries, the President’s advisor, Rudy Giuliani artfully explained, "When [the President] first announced it, he said ‘Muslim ban.’ He called me up. He said… show me the right way to do it legally. I put a commission together…very expert lawyers… and what we did was, we focused on—instead of religion—danger, the areas of the world that create danger for us, which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible."

Dozens of lawsuits were filed nonetheless, prompting judges to issue a series of injunctions blocking implementation of the ban.

In March of 2017, out of public view, the President signed a second order, revoking and replacing the first. The second order discreetly addressed the many problems that lawyers and judges identified in the first. For instance, rather than suspending refugee admissions from Syria indefinitely, the revised order barred Syrian refugees for a period of 120 days. The revised order also exempted from the general ban individuals with established ties to the United States. Though the revised Muslim ban would continue to affect nearly 200 million people living in some of the poorer and most violent parts of the world, because there were fewer fiancés, committed employers, and universities directly affected by the ban, the revised order managed to avoid the disruption and public outrage caused by the first.

After the second order was enjoined, the President signed a third. To make very clear that the Muslim ban was not a Muslim ban, the President added two non-Muslim majority countries to the list—North Korea and Venezuela. But even as he did so, he complained that the courts had forced him to issue a "watered down, politically correct" Muslim ban.

Finally, in June of 2018, the Supreme Court of the United States upheld the ban, maintaining that the President’s executive order was "squarely within the scope of presidential authority." Under existing immigration statutes, all that is required of the President is that he "find" that the entry of excluded immigrants would harm national interests. Although many critics pointed out that the President’s administration only offered a scant few pages providing no real evidence of threat from the excluded countries, Chief Justice John Roberts, writing for the Court, concluded "the President has undoubtedly fulfilled [his statutory] requirement here." Dismissing complaints that the law violated First Amendment protections against religious discrimination, Justice Roberts explained, "the text says nothing about religion."
Getty Images
In a speech announcing his candidacy in 2015, Donald Trump claimed that Mexican immigrants were criminals and rapists. He vowed to build a wall to prevent any more from coming into the country. He later called for a "total and complete shutdown of Muslim immigrants." Before he announced his candidacy, he began to build a following by insisting that the first black President was not an American citizen, deftly weaving anti-black racism with a dread of Muslims and resentment towards immigrants. If it was no longer acceptable to disclaim the President because he was black, Trump’s birtherism allowed racists to disavow Obama because he was foreign-born and because he was Muslim.

And yet critics were surprised—not only that President Trump would do what he said he would do, but that he could do what he said he would do. Surely, editorial writers promised, the Muslim ban would be found unconstitutional. As one editorial writer insisted, "the order is illegal. More than 50 years ago, Congress outlawed such discrimination." Referring to the history of Asian Exclusion, the writer explained that, with the Immigration Act of 1965, Congress brought a definitive end to "a long and shameful history [of] discriminating against immigrants on the basis of national origin, replacing the old prejudicial system and giving each country an equal shot." (David J. Bier, "Trump’s Immigration Ban is Illegal," The New York Times, January 27, 2017.)

The writer’s claims about the achievements of the 1965 Act are wishful, but as almost every immigrant knows, they are not quite true. Like other achievements of the civil rights era, the Immigration Act of 1965 brought an end to the most conspicuous forms of racial and ethnic discrimination. But it did not end discrimination. Instead, it introduced new, more discreet mechanisms for sorting and excluding. The law introduced, for instance, a uniform "per country" limit which, in theory, guaranteed individuals from each country "an equal shot." In practice, however, the per country limit affects different countries differently, rendering immigrants from certain countries—poor, unstable, or densely populated—less mobile than those from other countries—rich and tranquil. This is why a sibling from the Philippines might wait decades to reunite with an American citizen, while a similarly situated Swede waits not at all. Some of the countries worst affected by the limit, like India and China, happen to be among the most populated in the world; others, like the Philippines, Mexico, El Salvador, and Haiti, have long histories of colonial and neo-colonial entanglement. Most undocumented immigrants, we often forget, are indigenous to this continent now controlled by conquerors. Notwithstanding claims that the United States abolished national discrimination from its immigration policies once and for all, perhaps no biographical fact plays a bigger role in determining whether an individual can immigrate to the United States than his or her nationality.

The main problem with the Muslim ban, according to its most voluble critics, was not that it hurt vulnerable people, including refugees who have been displaced by U.S. foreign policy. Instead, the main problem with the Muslim ban is that it barely disguises its racist motivations. In the words of a Fourth Circuit judge, "invidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination."5The problem with the Muslim ban, in the judge’s account, is not that it insults Muslims, but that it insults "our Constitution," a particular image of what the nation should be, rather than what it is and has been. "Our Constitution" and its judicial defenders have allowed the extermination and expulsion of indigenous Americans, slavery and segregation, Asian exclusion and Japanese internment, the criminalization of immigrants generally.

Perhaps the most surprising statement made by the Supreme Court, in its decision to uphold the Muslim ban, was its announcement that Korematsu v. United States was "wrong the day it was decided."6 In that notorious case, decided in 1944, the Supreme Court allowed the President to order the internment of Japanese Americans in concentration camps. Justice Roberts rejected plaintiff’s comparison between Japanese internment and the Muslim ban—both executive orders that target racialized immigrant groups for discriminatory treatment. But as the legal scholar Hiroshi Motomura has suggested, "if the majority really wanted to bury Korematsu, they would have struck down the travel ban." (Charlie Savage, "Notorious Supreme Court Ruling on Japanese Internment is Finally Tossed Out," New York Times, June 26, 2018.)

We have been here before. And that is why an understanding of history—and especially the kind of history that SAADA works to preserve—is so important. National histories premised on the exclusion of others are ethically unsustainable. As James Baldwin wrote, white Americans remain "trapped in a history which they do not understand and until they understand it, they cannot be released from it." Trapped in its own self-image, the nation cannot learn from its mistakes, it does not know itself, and it does not understand its relationship to others. It becomes paranoid, insecure. Rather than burnish an illusion about the United States, the many thousands of discrete images, essays, and artifacts collected in the archives complicate our understanding of the United States. Newspaper clippings warning of a Hindu invasion or reporting crimes against recent immigrants represent a familiar nationalism and race panic. Early twentieth century writers like Sudhindra Bose and Saint Nihal hold an unflattering mirror up to the United States. Bose writes frankly about the casual bonds forged among white passengers on a train sharing rumors about a lynching. While many of the first Indian immigrants (mis)identified with the United States—as an enemy of British imperialism and model post-colonial nation—Sing more readily identified the anti-colonial struggle with that of African Americans in the United States. The pages of publications like The Hindustanee Student and The United States of India conjure a vision of an anti-imperialist internationalism that that feels as urgent now as it was a century ago. In this regressive moment, we might draw upon the archives as a resource, not only for understanding what the United States has been but, as Baldwin wrote, what it "must become."

1. United States v. Bhagat Singh Thind, 261 U.S. 204, 215 (1923).
2. 54 Cong. Rec. H1492-93 (1917) (statement of Rep. Raker).
3. 54 Cong. Rec. S160 (1916) (statement of Sen. Reed).
4. 54 Cong. Rec. H1492-93 (1917) (statement of Rep. Raker).
5. International Refugee Assistance Project v. Trump, 857 F.3d 554, 612 (4th Cir. 1917). [https://www.ca4.uscourts.gov/opinions/172231.P.pdf]
6. Trump v. Hawaii, 585 U.S. __ (2018) [https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf]
Sherally Munshi is an Associate Professor of Law at Georgetown University and member of SAADA's Academic Council.

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