Volume 12

Examining Trump v. Hawaii: Moving Forward in Light of the Supreme Court's Adverse Holding on the Muslim Ban

by Karma Orfaly

This Note dissects the Supreme Court’s recent decision in Trump v. Hawaii, which held that the Muslim ban was not a violation of the First Amendment’s Establishment Clause. Initially, the Note begins with a discussion of President Donald Trump’s Islamophobic rhetoric, shedding light on the events leading up to the ban and providing context for why I choose to refer to Trump’s executive orders as the Muslim ban, rather than travel ban. Then, it addresses the original Muslim ban, the subsequent watered-down versions of the ban, and the rationale used by federal courts in blocking it from taking effect. Subsequently, it discusses the Supreme Court’s adverse holding in Trump v. Hawaii, highlighting both the majority and the dissent’s reasoning. Then, the Note addresses the ramifications of the Muslim bans—the direct impact on foreigners from the banned countries and their American family members. It also addresses why the waiver process—a major reason why the Supreme Court majority upheld the ban—is merely a superficial attempt at backtracking from blatant discrimination, and one that in practice, presents no meaningful alteration from the original ban. Afterwards, it discusses the impact of the 2016 election cycle on the increase of hate crimes in 2017 and the effect that the Muslim ban could have on the number of hate crimes in the future. Finally, the Note addresses current and potential pushback against the Supreme Court’s adverse holding, including Muslim Advocate’s challenge to the waiver process in Emami v. Nielsen. These potential actions are simply necessary first steps in undoing the effects of the Muslim ban.

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