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 Abstract

Excerpted From: Aamir Shan Ibrahim, Muslim America: Extreme Islamophobia Puts Pressure on the Nation's Judicial System by Means of Terrorism, 46 Thurgood Marshall Law Review 179 (Spring, 2022) (95 Footnotes) (Full Document)

When a President issues an executive order, he intends to do so “to the best of [his] ability, preserve, protect and defend the Constitution of the United States.” This policy is issued on behalf of the interest and general welfare of the American people. It was the intent of the drafters to encourage prosperity and equality for every citizen of our nation. Even so, many presidents have issued executive orders with the purpose of serving as “instant law.” While some are more controversial than others, executive orders are used to exhibit the control that the executive branch of the government has, and more specifically, the President's power. Through militant authority, the declaration can articulate both the objective and effect in plain language. However, at times various doctrines have been known to mask bigoted agendas.

On January 27, 2017, President Donald J. Trump executed Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.” In its opening sentence, the document justifies the basis of minimizing foreign threats by way of “the Immigration and Nationality Act.” It suggests that the intent is to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.” Its language gave the impression that our country was under imminent attack by terrorist organizations and their plot against the American dream. The doctrine immediately faced much scrutiny from various nonprofits and Muslim individuals alike. While the racial animus exhibited had derived from prior statements on his campaign trail, legal challenges mounted. Still, it did stop the document from being superseded by Executive Order 13780. At his own discretion, the President “suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.”

With overly broad language, the order authorized, “Whenever the President finds that the entry of aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” It legitimized through carefully crafted verbiage the discrimination of Muslim immigrants by depicting threats from terrorist organizations; “Al-Shabaab ... continues to plan and mount operations within Somalia and in neighboring countries.” “ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe.”, and “Al-Qa'ida in the Arabian Peninsula (AQAP) have exploited this conflict to expand their presence in Yemen and carry out hundreds of attacks.”

While still facing legal action by both nonprofit and private citizens alike, President Trump signed Presidential Proclamation 9645, Enhanced vetting capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats, into effect. While this decree was proposed as a travel restriction on seven countries, it condemned and restricted the entry of foreign nationals to America predominately from nations with an Islamic populous. Together, we know these doctrines as “The Muslim Ban.” Despite the intent of a Presidential Executive Order to maintain the prosperity of the American people, President Donald J. Trump used his power to create mass hysteria against the Ummah.

The most critical moment against The Muslim Ban was Trump v. Hawaii. The Supreme Court addresses the fabricated sweeping threat against Muslim immigration in the policies by broadening the scope of the Immigration and Nationality Act (INA), which President Trump so fervently relied on to enact. The Court suggests “that had congress instead intended in § 1152(a)(1)(A) to constrain the President's power to determine who may enter the country, it could easily have chosen language directed to that end.” Thus, the Court failed to reprimand President Trump by suggesting, “The Proclamation does not fit that pattern[because] it is expressly premised on legitimate purposes and says nothing about religion.” At its crux, the case represents the failed abilities of the court to shed light on the racial animus expressed against Muslims, immigrants, and their lack of interest in American welfare. Specifically, the Court delegitimized the public interest of Muslim Americans, and granted racial discrimination, hatred, and promoted the Executive Orders. While the role of executive orders and presidential proclamations are to serve the general welfare of the people, on its biggest stage, our judicial system failed to address the lack of religious equity represented in the Muslim Ban.

Admirably, in International Refugee Assistance Project v. Trump, the lower court swiftly recognized that “the individual plaintiffs are themselves Muslims whose own religion is allegedly targeted by the Proclamation.” Then in similar fashion, in Washington v. Trump, the court contends that “the States' claims raise[d] serious allegations and present significant constitutional questions.” Without hesitation, the lower courts laid the foundation for evidence of the various underlying bigoted tactics applied in the doctrines themselves. However, the review of both cases represents the fallacies by the Supreme Court to read between the lines in Trump v. Hawaii; the mockery that was made of the Islamic faith, and failed observance of the general welfare of America meant by Executive Orders and Presidential proclamations alike. Hawaii symbolizes the disproportionate equity in this country for Muslims.

However, a new President signifies hope, and at times in the most unexpected way. If the office of the President has the power to outlast judicial review, then perhaps the strongest support for the Muslim community is to enact more Executive Orders or Presidential Proclamations. President Joe Biden, at the beginning of his term, hastily made reparations on behalf of his predecessors' intolerant agenda. His foresight recognized that while the Supreme Court glossed over the racially hidden program in the Muslim Ban, Presidential Proclamation 10141 proposes in its opening paragraph the lacking religious tolerance in America. He states, “Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.” It exemplifies the meaning of general welfare for all citizens. Thus, Muslim communities locally and abroad condemned by legal authority can retaliate with the continued support of orders and proclamations which are both textually and inherently illustrate our nation's diverse populous.

Is it not the intent of the Presidential office to serve the American people to the best of its ability? Then Executive Orders and Presidential Proclamations alike are enforced to offer equal opportunity and advantage to those within and seeking entry to our borders, no matter who the individual is. Through the lens of impartiality, Part I will discuss the development of these vested authorities in their earliest roots as pronouncements for the growth of civility in the United States of America.

However, not everything is as clear as it is intended to be. At times Presidents can instead create the illusion that the influence of these executive publications are inclusive of all individual's needs. It is with the same smoke and mirrors that President Donald J. Trump masked his planned Muslim Ban in his literally drafted conspiracy against terrorism. Part II shall emphasize the force behind the three doctrines that encompass the Muslim Ban and President Donald Trump's ability to develop systematic Islamophobia, and the Supreme Court's role in its acceptability.

Despite judicial proceedings, the Trump administration's efforts were authenticated by the highest court of our land. While lower courts created an avenue to overturn the racial bias against Muslims found in the doctrines, the Supreme Court justified the inadequate interest granted to followers of Islam hidden in the text. Thus, Part III applauds the efforts of the lower courts to recognize the bigoted normalization of the masked Xenophobia found in the executive authorities and condemns the Supreme Court for jeopardizing executive orders and presidential proclamations and their role to benefit all Americans.

Yet, even as we recognize that the highest office in our government can create inequality for various minority groups, it can provide relief for those individuals as well. As quickly as President Trump enacted his distasteful policies, President Biden was capable of revoking them and promoting the well-being of every citizen. As such, Part IV will operate to create a sense of empowerment, sympathy, and apology for the Muslim community and develop a reflection on the opportunity to support the general welfare of all Americans through all executive orders and presidential proclamations as they were intended to do.

[. . .]

On January 20, 2021, President Donald J. Trump was officially relieved of his duties as the President of the United States. The memory of a tainted Presidency was written on the walls of a capitol building which was infiltrated by the same racist and intolerant individuals who benefited from the Muslim Ban. A divided America we stood. However, a beacon of hope came with a new president. With the inauguration of our newly elected President Joe R. Biden, the majority of America waited to see the changes that were promised for the common prosperity of the American people. The answer originated in the presidential powers to enact new executive orders and presidential proclamations. The general welfare and public interest that had been stripped as a result of the Muslim Ban, could be rectified with broad policies in new orders and proclamations themselves.

On the same day he was inaugurated into office, President Joe R. Biden, signed a proclamation into effect. Only this time, President Biden followed what the drafters of the constitution intended. He used his vested authority to further the agenda of the American people in their desire for general welfare. Americans stood corrected as the Proclamation itself used rhetoric and language that was inclusive of all people. For the first time in four years the general welfare of America was regarded as an unbiased program for all to prosper.

In his opening paragraph of Presidential Proclamation 10141 he writes, “The United States was built on a foundation of religious freedom and tolerance, a principle enshrined in the United States Constitution.” President Biden suggested that tolerance was a necessary respect derived from the founding document of our nation. If our country's Constitution could convey this principle, then the presidential powers were meant to guard it. He furthered that, “[n]evertheless, the previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States ... from primarily Muslim countries .... Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.” Thus, President Biden had recognized the importance of preserving the intent of his executive authority when enacting such legislation. More importantly, he suggested it in plain text with no ulterior motive. He then addressed the fabricated threat of terrorism by suggesting, “where there are threats to our Nation, we will address them .... And when visa applicants request entry to the United States, we will apply a rigorous, individualized vetting system. But we will not turn our backs on our values with discriminatory bans on entry into the United States.” He recognized that there was a difference between taking precautions and forcibly excluding others for their religion. With his rhetoric and clear meaning he states,

[B]y the authority vested in [him] by the Constitution and the laws of the United States of America ... in the interests of the United States ... [he revoked] Executive Order 13780 of March 6, 2017 (Protecting the Nation From Foreign Terrorist Entry into the United States), Proclamation 9645 of September 24, 2017 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats) ... Our national security will be enhanced by revoking the Executive Order and Proclamations.

In one fell swoop, President Biden overturned what the Supreme Court in Trump v. Hawaii was unwilling to do--define the general welfare of the American people. He fought fire with fire and corrected purpose of the Executive orders and Presidential Proclamations by using them for their intended purpose. The four-year mask that had hid systemic racism and substantiated Xenophobia in America was uncovered and discarded. Islam was given the respect it deserved, and Muslims in America and abroad felt a sigh of relief. We finally understood how our biggest threat could be our biggest asset, the Executive Order and Presidential Proclamations themselves could be used to undue the harms of prior orders and proclamations. This was the answer: to use the very powers vested in the office of the President of the United States to ensure that the public and its general welfare is the priority.

While the Muslim Ban was a reminder of the blatant exclusivity in the meaning of common welfare, it showcased the unmatched capabilities of a sitting president to undue the most sacred of tenets that our nation was founded upon. The general welfare of American citizens should be expressed in the clear language in the executive branch's intentions. With the Muslim Ban, the intention was to alter the text, portray imminent threat of terrorism, and mask the true lack of color in the nation's public eye. Specifically, Donald J. Trump altered the intent of the Presidential Proclamation and Executive Order, and as a consequence he created an Islamophobic wet dream.

In a high praise of intelligence, our current sitting President, Joe R. Biden, resolved our largest concerns as Americans, equality. With the same means that than President Trump used to undo the hard work those before him, President Biden finally created a remedy, using a resource that only he could force on the people. The Executive Order and Presidential Proclamation were meant to further the general welfare of the people, it was restored. Yet, while Muslims continue to face Xenophobia in the land of the free, we hope that hereafter America recognizes the impact of each of these documents and hold them to the highest standard when conferring benefits on its people and for the people.

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