The US Supreme Court yesterday heard oral arguments in the case of Trump vs. Hawaii, the legal challenge by the state of Hawaii to the third version of Trump’s travel ban, which bars citizens of Somalia, Libya, Iran, Yemen, Syria, North Korea and many Venezuelans from traveling to the United States.
The court is not expected to reach its verdict until June. In December 2017, however, the court voted to overturn a temporary stay on the ban by lower courts, thus allowing it to stay in force until the court reaches a decision on the policy’s legality. This ensures that in the meantime, an unknown number of refugees will continue to die without being able to reach the US.
The latest version of the travel ban was announced by Trump in September 2017. The first version, which Trump signed into law on January 27, during the first week of his presidency, was subjected to numerous lawsuits on the grounds that it blatantly discriminated against Muslims, targeting seven Muslim-majority countries and providing exceptions for “religious minorities.”
The administration’s subsequent efforts to redraft the measure, the handiwork of Trump’s fascistic advisor Stephen Miller and his former Chief Strategist Steve Bannon, are transparently aimed at providing it with a pseudo-legal cover. The administration has dropped Iraq from the ban and added additional countries—North Korea and Venezuela—as well as Chad, which has since been removed.
As a result, the measure is now even more expansive than the first ban, and prevents as many as 100 million people around the world from traveling to the US based on their country of origin.
The arguments by the Trump administration and its representative, Solicitor General Noel Francisco, before the court yesterday underscored the fascistic aims and pedigree of the policy.
In the course of his remarks, Francisco was asked by Justice Elena Kagan to comment on a hypothetical case of a virulently anti-semitic president, who “says all kinds of denigrating comments about Jews” and, “in the course of that, asks his staff or his cabinet members to issue recommendations so that he can issue a proclamation” banning immigration from Israel.
Francisco responded by declaring that such an action would be entirely legal, so long as Trump’s cabinet “were to come to him and say, Mr. President, there is honestly a national security risk here and you have to act.”
The fact that the travel ban is targeted against Muslims and is aimed at whipping up anti-immigrant and anti-Muslim chauvinism is understood both among its supporters—including the fascist Daily Stormer and Breitbart News—as well as its opponents in the overwhelming majority of the US and world population.
Throughout his presidential campaign in 2016, Trump repeatedly shouted at his election rallies that there must be “extreme vetting” of Muslims traveling to the country, and called for “a total and complete shutdown of Muslims entering the United States,” as part of his efforts, which have continued into his presidency, to whip up a far-right and fascistic base of support.
The administration’s lawyers absurdly argued yesterday, however, that these statements had no significant bearing on the policy, because “campaign statements are made by a private citizen before he takes the oath of office,” and that there is a “fundamental transformation from being a private citizen to the embodiment of the executive branch.”
In the wake of yesterday’s hearings, legal commentators have noted, based on the arguments and line of questioning by the Supreme Court justices, that the court will more likely than not uphold Trump’s ban. This would represent a further historic milestone in the evisceration of basic democratic rights in the United States and the march toward the erection of an authoritarian police state by the American ruling class.
The questioning by the Republican-appointed conservative judges on the bench, as well as Anthony Kennedy, considered to be the “swing” voter more likely to side with the court’s nominally “liberal” wing to prevent the ban, supported the government’s argument that the determination of threats to “national security,” used as a pretext for the ban, is not subject to judicial review.
Moreover, the court’s so-called “liberal” wing has itself repeatedly voted to allow the basic framework of Trump’s reactionary travel ban to go into effect. In June 2017, the court voted unanimously to allow the second version of Trump’s temporary 90-day Muslim ban, drafted in March, to go into force. In December, the court voted 7-2 to allow the latest iteration of the ban to continue, with votes in support by Obama nominee Elena Kagan and Clinton nominee Stephen Breyer.
These decisions have been based on the same pseudo-legal argument of “national security” considerations that the administration is using in the current case. In fact, none of the terrorist attacks carried out in the United States since 2001 have been carried out by individuals from the countries targeted in the latest bans.
The fact that the Trump administration’s travel ban has been able to even be implemented and reached the Supreme Court is a product of the role played by the Democratic Party, which has systematically worked to demobilize popular opposition to Trump’s anti-immigrant policies since the election and the mass demonstrations of millions of people at airports around the country in January last year opposing the signing of the ban.
The Democrats have not mounted any campaign against Trump over his attacks on immigrants, his tax cuts for the financial elite, his bombing of Syria or threats of war against Iran and North Korea. They have instead attacked Trump from the right, for being supposedly soft on Russia, as part of their efforts to force the administration to adopt a more aggressive posture toward Moscow.
The Democratic Party has moreover acquiesced to all of the most reactionary elements of Trump’s anti-immigrant policy, including the construction of a “wall” along the Mexico border and the permanent detention of immigrants who seek to cross the border, and the planned deportation of DACA recipients.