The Supreme Court today rejected the challenge to President Trump’s Muslim Ban. In its 5-to-4 decision, the court failed to make good on principles at the heart of our constitutional system — including the absolute prohibition on official disfavor of a particular religion. The fight against the ban will continue, but the court’s decision is devastating. History will not be kind to the court’s approval of an unfounded and blatantly anti-Muslim order. 

By now the story of this shameful policy is familiar. During his campaign, Trump issued a statement calling for “a total and complete shutdown of Muslims entering the United States” — which remained on his website until well into his term in office. That was hardly a stray comment. Rather, over and over, both before and after the election, Trump expressed his animus for Islam and Muslims and tied that animus to his proposed immigration ban. 

Just one week into office, Trump attempted to make good on the campaign promise, issuing a sweeping ban on over a hundred million Muslims without even consulting the government’s national security experts. Courts rejected that first version as well as the order the administration crafted to replace it. Finally, those temporary measures were replaced by the current proclamation, which likewise bans over 150 million people — approximately 95 percent of them Muslim. As Justice Sotomayor explained in her dissenting opinion, Trump’s consistent messages and actions paint a “harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.” 

Nonetheless, the court today rejected the constitutional challenge to the ban. Applying deference to the president despite the evidence presented, the court explained that it would “uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” The court then concluded based on the record in the case that the ban had “a legitimate grounding in national security concerns, quite apart from any religious hostility.” 

As Justice Sotomayor cogently explained, the majority could reach this conclusion only by “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals.”  In this respect, as she noted, the case repeats some of the worst mistakes the court has made in the past.  In particular, the parallels to Korematsu v. United States, the court’s 1944 decision upholding the incarceration of Japanese-Americans, are striking.  

As in that case, the court today paid lip service to the vital constitutional values at stake, but it willfully ignored the reality of the situation. The majority today repudiated Korematsu, saying it “was gravely wrong the day it was decided.” But as Justice Sotomayor pointed out, then, as now, it was clear to those willing to look at the evidence that the government’s policy was not about safety but prejudice: 

“By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

Today’s decision is devastating. Whatever the court may have intended, the message it relays to Muslim communities around the country and around the world is that our Constitution tolerates transparent discrimination and animus against Islam. It undermines our standing to encourage tolerance and pluralistic democracy abroad, and it reinforces the intended message that Muslims — and immigrants, people of color, LGBT communities, and other marginalized groups — are not welcome in Trump’s America.

But this fight is not over.  

Indeed, the greatest repudiation of Trump’s anti-Muslim policy to date was not delivered by any court. Instead, it was delivered by thousands of people spontaneously coming together at airports across the country to declare that we will not stand for hatred and discrimination.  

Tell Congress to rescind the Muslim Ban

In that spirit, we all need to redouble our efforts to organize, protest, and push Congress to end the ban once and for all. This is a painful setback, but the struggle for a free, equal, and inclusive America will continue.

The ACLU’s class action lawsuit to end family separation and immediately reunite children and parents has reached a pivotal point, following a June 22 status conference where the government was unable to articulate a plan to reunite thousands of children in its custody with their parents.

The lack of foresight and planning is galling. For each day the government stalls, thousands of children are subjected to irreparable trauma. What’s more, there have been reports that immigration officers are actively pressuring parents to give up their asylum claims in order to be reunited with their children.

This cruelty and utter contempt for the welfare of children and the rule of law cannot stand. Our government cannot be allowed to hold children hostage in order to sabotage the legal claims of people seeking refuge.

On Monday, we asked the court to hold the Trump administration to account, and require it to reunify all children with their parents within 30 days, and within 10 days for children under five; provide parents, within seven days, telephonic contact with their children; stop future separations of children from their parents; and not remove separated parents from the United States without their children, unless the parent affirmatively, knowingly, and voluntarily waives the right to reunification before removal.

The court’s role is more important than ever in light of recent actions by the administration seeking to deflect the public’s attention. On June 20, President Trump signed an executive order that purports to end further separations of families at the border. The order, however, contains a significant carve-out authorizing family separation “when there is a concern that detention of an alien child with the child’s alien parent would pose a risk to the child’s welfare.”

Those vague terms are not defined, and they would allow enormous leeway for immigration officers to justify separations that don’t meet constitutional standards. For example, DHS has defended its actions in taking away the 7-year-old child of Ms. L, a Congolese mother who sought asylum at a port of entry. Their justification is that Ms. L did not have her documents with her by the time she reached the United States after a 10-country journey from the Congo — a common occurrence for asylum seekers. But rather than making a meaningful attempt to verify their relationship, the government separated a child from her mother for close to five months. There is nothing in the executive order that would stop this type of unnecessary separation and trauma from happening in the future.

Just as pressing, the executive order does not address the reunification of already separated families at all, and the government has no meaningful plan to swiftly ensure that such reunifications occur. Instead, during a telephonic status conference with the judge, the government’s attorney attempted to suggest that the Office of Refugee Resettlement’s preexisting processes for releasing immigration children from its custody would suffice.

It will not.

ORR’s sponsorship and reunification processes were designed for the entirely different situation of a child who comes to the border alone, where the agency must identify and vet a sponsor (family member or otherwise). They are simply inadequate to quickly reunite a child who was forcibly taken from his or her own parents. For example, ORR has no systems designed to flag a child as having been separated from a parent at or near the time of the family’s arrest, to track the identity and detention location of the separated child’s parent after the separation, to ensure regular contact between a separated detained child and her detained parent, or to reunify the child and parent in an ICE family detention facility.

ORR’s shortcomings are on clear display considering the steps it has taken to allow communication between parents and children, much less reunite them. For instance, ORR has created a 1-800 hotline number that supposedly allows parents to find the children who have been taken from them, but it regularly puts people on hold for 30 minute periods — a length of time which is infeasible for detained parents to stay on the line. The hotline is now generating a constant busy signal.

Similarly, DHS has created a hotline for ORR caseworkers or attorneys trying to find parents. But that hotline merely permits a caller to request contact with a detained parent, and field offices can decline to respond to such requests.

It’s clear that if the government is left to follow its existing practices — which put the onus on parents to find their children but offers no reliable system for them to do so — the overwhelming majority of children will not be reunited any time in the near future.

Nevada is approaching a crisis concerning where and how we house youth tried as adults.

The ACLU of Nevada’s new report, Youth Confinement in Nevada, discusses the significant consequences of placing a child in the adult system and explores the history of proposed policy solutions and why they failed. The ACLU of Nevada toured several facilities that house youth at some stage in their criminal proceeding, as well as the Summit View Youth Center, and the results of those assessments are presented in the report.

ACLUNV will present its report at Wednesday’s meeting of the Legislative Committee on Child Welfare and Juvenile Justice at 9 a.m. at the Grant Sawyer State Office Building Room 4401, 555 E. Washington Ave.

As the state’s population grows, so does the rate at which youth are certified as adults. But youthful offender units are overcrowded and housing for girls is unavailable. Nevada needs to confront this issue directly and work to ensure positive outcomes for all juveniles adjudicated as adults.