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One Thing You Can Never Say, That You Haven’t Been Told


You will be shocked to “discover” that the waiver system ginned up to put a bow on Donald Trump’s Muslim ban is a complete sham:

Our organization, the International Refugee Assistance Project, was among the groups that filed the first challenge to the executive order, and we won a series of injunctions temporarily blocking the ban from being enforced. But in June the Supreme Court upheld a modified version of the ban in a 5-to-4 decision. The majority sided with the Department of Justice, which had claimed that a “robust” waiver process would allow citizens from the blacklisted countries to enter the United States if they met certain reasonable criteria. The Trump administration had cited this as evidence that the travel ban was rooted in national security concerns and not in the discriminatory intent to ban people on the basis of their religion.

This assurance was a key rationale for the court’s decision. Chief Justice John Roberts’s majority opinion argued that a waiver process would provide humanitarian exceptions to the ban and thus supported “the government’s claim of a legitimate national security interest.” However, in their separate dissents, Justice Stephen Breyer raised serious concerns about the waiver process, and Justice Sonia Sotomayor argued that it was a “sham.”

It turns out they were right. The waiver process is opaque, arbitrary and unreasonably harsh, and it has not mitigated the ban’s effects on thousands of families in dire circumstances. It makes a mockery of the rule of law.

The waiver provision in the ban stipulates that those barred by their nationality from entering the United States may be granted waivers if they satisfy a three-part test: Applicants must show that being denied entry would cause “undue hardship,” that their entry would be “in the national interest” and that their entry would “not pose a threat to the national security or public safety of the United States.” But there are no published instructions as to how or where to apply for a waiver. Nor is there a form to fill out. This is in direct violation of the text of the ban, which explicitly directs the secretaries of state and of homeland security to clarify the process.

We have no way of knowing how many people have tried to obtain a waiver. What we do know is that the State Department has interpreted the ban’s provisions in an excessively harsh manner: Between Dec. 8, 2017 and April 30, 2018, according to the only data the administration has made available, roughly 98 percent of people who applied for a visa did not receive a waiver.

Thanks to the Freedom of Information Act, we know that the State Department will not even consider an applicant’s home country conditions when evaluating whether the travel ban imposes undue hardship. What this means in practice is that a Yemeni woman whose husband is in the United States cannot cite atrocities against her family or hometown as evidence of undue hardship. Some consulates even outright refuse to accept the supporting materials that applicants submit to try to prove their eligibility for a waiver.

The system is not just ungenerous; it is also arbitrary.

As Korematsu II quickly enters the anticanon, Justice Sotomayor’s dissent will be frequently quoted, as will the Chief Justice’s revealingly dishonest attempt to distinguish Korematsu I. I certainly hope Justice Kennedy’s pathetic “well, maybe this ban was motivated by religious animus, but as a the nation’s top appellate court charged with enforcing an explicit ban on religious discrimination, what are you gonna do?” concurrence will be remembered, as it perfectly reflects both the nature of the Roberts Court and the relationship between Republican elites and Donald Trump. And as Leah Litman observes, this is where the separate Breyer/Kagan dissent has some value. A Court majority that was actually trying to evaluate the nature of the ban in good faith would have, at an absolute minimum, asked for more evidence about the waiver process. If there was going to be countervailing evidence suggesting that, despite Trump’s repeated statements that the ban was motivated by religious animus, the ban was motivated by permissible national security objectives it would be found in the waiver process. Since it wasn’t, as both dissents concluded, it was plain that the ban was motivated by religious animus.

But of course Roberts and his Republican colleagues were not acting in good faith. They should start scrutinizing the administration more closely having been embarrassed if you take Korematsu II at face value, but they won’t. Donald Trump may be vulgar, but they’re getting the nice house in the suburbs and the filled closet and Roche Bobois dining room set out of the deal, and they’re not about to take the kids and leave their lifestyle behind.

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