Notes on the Muslim Ban: Historical Context, Legal Framework, and Implications

Overview

The Muslim Ban is described as the culmination and legal manifestation of a long history of anti-immigrant and anti-Muslim policies in the United States. It is framed as geographically framed but racially/religiously motivated, with the explicit promise to shut Muslims out of the country. It began with promises of a “total and complete shutdown of Muslims entering the United States,” and included anti-Muslim rhetoric by Trump, including retweeting anti-Muslim videos and invoking historical precedents (e.g., Japanese American internment as a model).
The initial executive order did not explicitly name Muslims, but used geography as a proxy for religion; multiple lawsuits followed, and courts suspended or challenged the ban. The administration revised the ban twice in response to judicial challenges, attempting to separate (or disguise) anti-Muslim intent while maintaining the same policy outcome. The Supreme Court ultimately ruled in favor of the administration’s authority, described as the president’s “ample power” over immigration.
The chapter argues that the ban should be read within longer histories of exclusion and racism in U.S. immigration policy, including the central role of state power to exclude and the gradual expansion of what counts as an “illegal” migrant. It connects the Muslim Ban to older bans (e.g., Chinese Exclusion, Asiatic Barred Zone, Johnson-Reed Act) and to broader politics of sovereignty, border control, and nationalism.

Key Concepts and Frameworks

Anti-Muslim racism: A specific, historically rooted form of racism that targets people who look Muslim or who are perceived to be Muslim, often conflated with Arab identity or with geography such as the “Middle East.” This racism has been described as evolving through different forms over time but sharing a core impulse of suspecting and excluding those deemed foreign or “unassimilable.”
Orientalism (Edward Said): A worldview that constructs Arab and Muslim people as culturally distinct, inferior, and potentially dangerous in contrast to a Western self-image of rationality and modernity. This framework helps explain universal stereotypes in media, policy, and diplomacy.
Geographies as proxies for religion: The use of country lists and borders to justify exclusion on religious grounds, a tactic visible in multiple bans (and historically in U.S. policy).
Plenary power doctrine: A long-standing judicial principle that immigration control is largely immune from judicial review and rests in the hands of the political branches. This doctrine originated in late-19th-century cases involving Chinese exclusion and has underwritten expansive executive authority over immigration issues.
National security pretext: The Supreme Court’s majority in Trump v. Hawaii emphasized national security justifications as an independent ground to sustain the ban, even when the text did not explicitly target a religious group. This underscores how security rationales can be used to override concerns about discrimination.
Legal and constitutional tensions: The First Amendment’s religious freedom protections are read in tension with executive power in immigration matters, raising questions about whether a policy that primarily targets a religious group can be justified by non-religious (national security) grounds.

Historical Context: Immigration Bans and Exclusion in U.S. History

The United States has long oscillated between openness and exclusion, shaped by domestic needs, labor demands, and international relations.
The U.S. is defined, in part, by whom it excludes, not only by whom it includes; exclusion criteria have shifted across race, gender, health, wealth, sexuality, etc.
Early openness contrasted with settler colonialism and slavery: colonial admission of settlers alongside expulsions of Indigenous peoples and racialized labor exploitation (enslaved Black people), framing a longstanding conflict between inclusion and exclusion.
The Naturalization Act reserved citizenship for the “free white person,” with Indigenous peoples often excluded from citizenship; later amendments (e.g., 14th Amendment) broadened inclusion but still left numerous exclusions.
The mid-19th century saw a push on the West Coast for bans against Chinese migrants, culminating in the Chinese Exclusion Acts (late 1800s). These acts used both racial and gendered logic—e.g., the Page Act targeted Chinese women under claims of immoral behavior, while the Chinese Exclusion Act barred Chinese laborers but exempted diplomats, students, and merchants who might bolster commerce.
The term “illegal alien” emerged as a concept with Chinese exclusion and the expansion of control mechanisms (visas, passports, border inspection, and residency certificates) that framed migrants as lawbreakers when present without authorization.
The 20th century’s immigration regime was further shaped by:
- Asiatic Barred Zone (early 20th century) restricting immigration from large parts of Asia.
- Johnson-Reed Act (1924), establishing national-origin quotas and privileging Northern and Western European immigration while restricting others, with a climate of eugenics influence and anti-Semitism.
- McCarran-Walter Act (1952), which maintained race-based preferences but introduced colorblind naturalization; nonetheless, it continued to restrict many groups, including Eastern and Southern Europeans and broader nonwhite populations, while allowing for executive discretion over who could be barred.
- Hart-Celler Act (1965), which ended the national-origin quotas but created new, country-wide caps and allowed more diverse immigration patterns; it nonetheless maintained ongoing restrictions for certain groups and included provisions like a ban on sexual deviants that affected queer migrants until 196(x)–1980s adjustments.
The interplay of policy and geopolitics shaped real-world consequences: migration policies were used to manage labor needs and political relationship dynamics, and to justify surveillance and policing practices against specific communities.

Timeline and Core Legal Milestones

Late 19th century: Chinese Exclusion Acts (1880s–1890s) and Page Act (prohibiting entry of persons considered immoral or likely to become public charges). These acts created the first national immigration controls and introduced the concept of “illegal presence.”
1889–1896: Supreme Court decisions upholding exclusion, including Chae Chan Ping v. United States (1889/1890s), Fong Yue Ting v. United States (1893), Wong Wing v. United States (1896). These decisions supported broad federal power to exclude, deport, and detain aliens with limited constitutional protections for excluded individuals. The idea of plenary power grows from these rulings.
1917: Immigration Act (Asiatic Barred Zone) restricting immigrants from large parts of Asia; linked to racial and religious discrimination via geographic proxies.
1924: Johnson-Reed Act establishes national-origin quotas that privilege Northern and Western European migrants; reflects eugenic and anti-Semitic undertones and a fear of “undesirable” foreigners.
1952: McCarran-Walter Act retains racial preferences while introducing some colorblind features; strengthens presidential exclusion powers and screening programs; forms a framework for later immigration enforcement.
1965: Hart-Celler Act abolishes the national-origin quotas; expands family reunification and overall diversity of immigration, but still maintains some geographical and policy constraints. The act is seen as a civil-rights milestone in immigration but also creates ongoing exclusions and entry controls.
1970s–1980s: Nixon–Carter–Reagan era debates and reinforcements of exclusory policies; Operation Boulder (late 1960s–early 1970s) targeted specific communities for surveillance. The era also shapes rhetorical frames around national security and foreign policy concerns.
1995: Oklahoma City bombing (April 19, 1995) triggers stricter national security rhetoric and lays groundwork for later anti-terrorism legislation; it also demonstrates how terrorism discourse can conflate domestic attackers with foreign Arab/Middle Eastern or Muslim identities, a pattern that informs later policy and media coverage.
2001: September 11 attacks; Authorization for Use of Military Force (AUMF) expands executive power to engage in extended military actions abroad; USA PATRIOT Act broadens surveillance, detention, and deportation authorities; DHS is created (2002–2003) and reorganizes immigration enforcement.
2001–2003: USA PATRIOT Act and the post-9/11 security framework; NSEERS (National Security Entry-Exit Registration System) starts operations, registering migrant men from many Muslim-majority countries; increases surveillance and potential deportation pathways.
2003: Department of Homeland Security (DHS) is established, consolidating immigration enforcement under ICE, CBP, and USCIS; this centralizes and politicizes immigration enforcement and border control.
2017–2018: The Muslim Ban is issued in three versions (first version announced in 2017, second version adjusted, third version announced later in 2017). It bans or restricts entry from several countries and imposes refugee admission limits; the Supreme Court upholds the third version in Trump v. Hawaii (June 26, 2018).
2011: Obama administration dismantles NSEERS as part of reforms, signaling shifts in how anti-terror policies target migrant communities.

The Muslim Ban: Versions, Legal Battles, and Supreme Court Ruling

Version 1 (2017): Banned entry of travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days; banned all refugee admissions for a period (described in the text as a substantial short-term halt); cut refugee admissions overall to a reduced level.
Version 2 (2017): Adjusted to lift certain prohibitions (e.g., Iraqi travelers and Syrian refugees) and allowed entry for permanent residents, visa holders, and dual citizens of non-banned countries; claimed as a legal tweak to avoid judicial challenges while maintaining policy aims.
Version 3 (2017): Imposed a more narrowly framed ban on certain noncitizens from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia; included an ostensibly improved vetting process; implemented shortly before Supreme Court review.
Supreme Court decision in Trump v. Hawaii (June 26, 2018): The Court upheld the third version, ruling that it did not explicitly discriminate on the basis of religion and that even if it did, the presidential powers over immigration (plenary power) provided a sufficient independent justification under McCarran-Walter Act. The Court noted national security concerns as a basis for the policy and deferred to executive branch discretion, thereby preserving the ban.
Dissent (Justice Sonia Sotomayor): Argued that the majority’s reasoning concealed the underlying discriminatory animus against Islam and Muslims; warned that the decision creates a dangerous precedent by allowing a religious ban under the cover of security concerns. Compared the decision to Korematsu v. United States (which was later repudiated) to illustrate the danger of empowering the executive in the face of racial exclusion.
Key implications of the ruling: The Court legitimized a religiously inflected exclusion policy as constitutional by relying on the plenary power doctrine and nonreligious justifications; the decision has potential long-term effects on how religious freedom and immigration law interact and on the judiciary’s role in reviewing executive power in immigration matters.

Core Legal Doctrines and Precedents

Plenary Power Doctrine: The judiciary has limited ability to review immigration decisions, rooted in historical cases about exclusion and deportation. The Trump v. Hawaii majority emphasized that admission and exclusion of foreign nationals are fundamental sovereign functions largely insulated from judicial control.
Chae Chan Ping v. United States (1889): Upheld broad federal authority to regulate immigration; supported exclusion and deprivation of rights of noncitizens; contributed to the plenary power foundation.
Fong Yue Ting v. United States (1893): Reinforced the notion that the state could deport and regulate noncitizens with limited constitutional protections.
Wong Wing v. United States (1896): Addressed detention of noncitizens and provided some constitutional protections for certain treatment of aliens, but still within the broader framework of executive power in immigration.
Korematsu v. United States (1944): Upheld internment during World War II; later repudiated as morally and legally unacceptable. Sotomayor’s dissent in Trump v. Hawaii invokes Korematsu to warn against repeating such errors and to highlight the danger of constitutional compromises in the name of security.
1952 McCarran-Walter Act: Maintained a framework of race-based preferences but introduced some colorblind aspects; it nonetheless centralized executive discretion over immigration decisions and created ongoing tools for exclusion.
1965 Hart-Celler Act: Abolished national-origin quotas and aimed to diversify immigration; despite reform, it did not erase all forms of exclusion and continued to embed security and border control logic in policy.
1924 Johnson-Reed Act: Established national-origin quotas that favored Northern and Western Europe and created a lasting framework for immigration control; embedded eugenic and xenophobic logics in policy.
1917 Asiatic Barred Zone Act: Expanded restrictions on Asian immigration and helped normalize geographic proxies for exclusion—prefiguring later bans framed as religious or cultural threats.
1996 AEDPA (Antiterrorism and Effective Death Penalty Act): Expanded enforcement powers and expedited removal of aliens; impacted asylum procedures and increased detention and surveillance powers in the wake of terrorism concerns.
2001 USA PATRIOT Act: Expanded surveillance, detention, and deportation authorities; broadened government power to combat terrorism and increased the federal government’s capacity to monitor and control foreign-born individuals.
2002 NSEERS (National Security Entry-Exit Registration System): Systematically registered and profiled migrant men from Muslim-majority countries; later dismantled by the Obama administration (2011) but left a legacy of targeted surveillance and detention frameworks.
2003 DHS reorganization: Creation of the Department of Homeland Security and the restructuring of immigration enforcement into ICE, CBP, and USCIS; centralizes security-centric approach to immigration and border control.
2010s: The broader war on terror and security-centric foreign policy shape domestic policy toward immigrants and Muslims, prompting new forms of surveillance, enforcement, and policy justification.

Social, Ethical, and Global Implications

Anti-Muslim racism extends beyond policy into media representations, popular culture (e.g., Indiana Jones, Aladdin, True Lies), and public discourse, reinforcing stereotypes of Muslims as threats.
The War on Terror and foreign policy actions (airstrikes, regime change, arms sales) interact with domestic immigration policy to produce conditions that increase migration pressures and shape reception in the U.S.; the ban is part of this broader framework.
The doctrine of “national security” is used to justify sweeping exclusions; however, evidence from intelligence communities has often shown that these policies do not necessarily correlate with actual risk, and they may hinder national security by fostering distrust and undermining civil liberties.
The rise of anti-immigrant sentiment intersects with neoliberalism, which emphasizes markets and deregulation while also coupling economic anxiety with racialized fear, which can be mobilized to justify restrictive immigration policies.
The law’s language and practical effects affect not only Muslims from Arab backgrounds but also Muslim people who do not fit simple racial or religious categories (e.g., Sikhs with turbans who are mistaken for Muslims) and non-Muslims who appear to be from targeted regions.
The ban’s broader consequence is to normalize a policy environment where “unassimilable” or “undesirable” groups can be excluded or policed more aggressively, and where “illegal” status can be used to justify ongoing surveillance and detention regardless of actual threat.

Evidence, Examples, and Metaphors from the Transcript

“Geography as a proxy for religion”: using country lists rather than explicit religious criteria to justify exclusion. Giuliani’s admission that geography substituted for religion is cited as a critical point for understanding legal reasoning.
The idea that the ban “extends the long history of efforts to exclude those deemed undesirable” from Chinese exclusion to the modern era; the text emphasizes continuity rather than novelty.
The “demonized class of ‘illegal aliens’” created by exclusion policies, and how walls, raids, and enforcement tools are tied to this category.
The “Arab and Muslim regress” narrative tied to media coverage of terrorism, including disproportionate reporting on Muslim attacks versus white, Christian perpetrators, illustrating bias and framing.
The concept of “illegal” status as a lasting condition even after attempts to remove or deport individuals, since the policy creates a population that remains present regardless of attempts to exclude.

Practical and Ethical Implications for Today

The case demonstrates how executive power over immigration can expand with relatively limited judicial oversight, raising questions about civil liberties, due process, and religious freedom.
It demonstrates the importance of organizing across multiple fronts (legal challenges, public protests, and advocacy) to contest powerful executive actions that threaten civil rights.
It highlights the necessity of interdisciplinary analysis—legal doctrine, historical context, political economy, media studies, and ethics—to fully understand how anti-immigrant and anti-Muslim politics are manufactured and sustained.
The discussion invites reflection on how governments should balance legitimate national security concerns with the protection of human rights and religious freedom, and how to design policies that do not stigmatize entire religious or ethnic groups.

Key Quotes and Notable Passages

“total and complete shutdown of Muslims entering the United States.”
Giuliani’s admission that geography substituted for religion as a legal workaround.
Leti Volpp on the specific form of racism that targets those who “appear Middle Eastern, Arab, or Muslim.”
Sotomayor’s critique: the order is a “Muslim Ban contaminated by impermissible discriminatory animus against Islam and its followers.”
The Court’s refrain that the admission and exclusion of foreign nationals is a sovereign power largely immune from judicial control; the reliance on national security as the “sole prerequisite” to pass review.

Connections to Previous Lectures and Real-World Relevance

Connects to foundational debates on immigration policy, national sovereignty, and civil rights.
Demonstrates the ongoing tension between security concerns and religious freedom, a debate that recurs in many policy areas beyond immigration.
Provides a concrete case study of how racism, xenophobia, and Orientalist tropes can be woven into law and policy, with lasting effects on groups targeted by discrimination.
Highlights the ongoing relevance of Supreme Court jurisprudence on immigration, including how past doctrines (plenary power) interact with contemporary challenges (antidiscrimination protections).

Formulas, Numbers, and Equations

Immigration ban timeframes and quotas (examples):
- First version: 90 days ban on entry from specified countries; refugee admissions halted for a period; overall refugee admissions reduced.
- Third version and Supreme Court decision: no explicit end date; the policy could be indefinite under the plenary power framework.
Notable years and acts (for quick recall):
- 1880s–1890s: Chinese Exclusion Acts; Page Act.
- 1917: Asiatic Barred Zone Act; 1924: Johnson-Reed Act; 1952: McCarran-Walter Act; 1965: Hart-Celler Act.
- 1979–1980s: Operation Boulder; 1980s–1990s: post-Cold War tightening and surveillance measures.
- 2001: USA PATRIOT Act; 2002–2011: NSEERS; 2003: DHS reorganization.
- 2001–2009: Homeland security budget expansion (example figures cited as a large increase, with exact starting point not specified in the transcript).
- 2017–2018: Three versions of the Muslim Ban; Supreme Court decision in 2018.

Possible Exam Questions

How does the Muslim Ban illustrate the plenary power doctrine and its limits in immigration law?
In what ways does the history of immigration bans in the United States reveal continuities and changes in the logic of exclusion (race, ethnicity, religion, and national origin)?
What role did Orientalism play in shaping anti-Muslim racism in U.S. policy and culture?
Compare and contrast the rationale used by the Supreme Court in Trump v. Hawaii with the concerns raised in Sotomayor’s dissent.
How did the policies and actions following 9/11 influence domestic surveillance and immigration enforcement? Discuss NSEERS and the DHS reorganization.

Summary Takeaway

The Muslim Ban is best understood not as an isolated policy but as a continuation of a long history of exclusion, racialization, and the fusion of national security with immigration control. Its legal journey—from executive orders through Supreme Court approval—reveals how sovereignty, security rhetoric, and discriminatory animus can align to produce lasting political and legal effects. The broader lesson is the need for vigilant civil society organizing across legal, political, and cultural dimensions to counteract the entrenchment of exclusionary power.