Excerpted From: Tina Al-Kherson and Azadeh Shahshahani, From the Chinese Exclusion Act to the Muslim Ban: An Immigration System Built on Systemic Racism, 17 Harvard Law & Policy Review 131 (Summer, 2023) (85 Footnotes) (Full Document)


Al KhersonShahshahaniOn January 27, 2017, the first version of President Donald Trump's travel ban [hereinafter the Muslim Ban or the Ban] went into effect. It targeted nationals from Muslim majority countries including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It also indefinitely barred Syrian refugees, cut the total number of refugees allowed to be resettled to the United States by more than half, suspended the refugee admissions program, and prioritized the admission of non-Muslim religious minorities. While the first Muslim Ban was challenged in court, the Executive Order went through another iteration in March, until it settled in its final form in September 2017. In this Presidential Proclamation, President Trump indefinitely prohibited nationals from six Muslim-majority countries from entering the United States. This list included Iran, Libya, Somalia, Sudan, Syria, and Yemen, in addition to North Korea and all government officials from Venezuela. A month after the third iteration of the Muslim Ban was enacted, the portion banning refugees expired, so President Trump issued a separate Executive Order that slowed down the resettlement process and effectively dismantled the resettlement program. This new Refugee Ban imposed extreme vetting policies and introduced another 90-day ban on eleven countries, nine of which have a Muslim-majority population: Egypt, Iran, Iraq, Libya, Mali, Somalia, Sudan, Syria, and Yemen. Despite swift public outcry that denounced President Trump's executive orders as xenophobic, the Supreme Court of the United States upheld the third iteration of the ban on June 26th, 2018.

Unsurprisingly, the implementation of the Bans resulted in devastating consequences for refugees and immigrants worldwide. In the short term, the confusion and chaos that ensued after the first Ban led to the detention of individuals in airports, stranded refugee families who were due to arrive in the United States abroad, and even resulted in the expulsion of refugee families who had just arrived to the United States. Subsequent iterations of the Ban would also indefinitely separate families, prohibit students from continuing their studies, and prevent sick individuals from accessing necessary medical treatment. And while the long-term impacts of the Ban are yet to be fully determined, one notable effect is the drastic decrease in the number of refugees resettled in the United States, particularly of Muslims--a decrease that will negatively impact refugee resettlement in the United States for years to come.

In response to the Muslim Ban, thousands of individuals took to the streets to protest that the Ban did not align with “American values,” but this article demonstrates that the Ban is a continuation of U.S. immigration policies that have long been driven by racism and exclusion. Although immigration to the United States was relatively unrestricted in the first few hundred years after the country's founding, qualitative and quantitative restrictions were subsequently enacted to exclude nonwhite individuals from naturalizing. As immigration policies became increasingly predicated on one's whiteness, judges sought to define the concept by creating “tests” based on common knowledge and science. These tests were designed to exclude nonwhite immigrants, including Muslims from traveling to the United States and becoming American long before the enactment of the Muslim Ban. When whiteness was no longer explicitly the test for allowing immigrants into the United States, various administrations used economic or national security arguments to continue to inhibit nonwhite individuals from immigrating--a tactic that the Muslim Ban adopted. Such racist immigration policy coming out of the legislative and executive branch has endured for centuries in part because of the plenary power doctrine, which allows the Supreme Court to ignore even overt animus under the guise of deferential review. Together, these arguments prove that despite the public outcry that erupted after the implementation of the Muslim Ban, the Muslim Ban fit right in with “American values.”

To work towards an immigration system that does not operate on racism and exclusion, it is necessary to document and discuss this country's dark history. This article attempts to do just that. By no means an exhaustive summary of racist U.S. immigration policy, this article highlights the ways in which white supremacy has maintained and defined the U.S. immigration system, harming countless individuals in the process. Only once we confront the dark history of the U.S. immigration system and the legal mechanisms that prop it up will we be able to work towards legal solutions that contribute to a more inclusive immigration system.

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As evidenced, anti-immigrant sentiment directed towards nonwhite individuals has existed in the United States since the first non-Protestant immigrants began arriving on the shores of the country. These nativist sentiments were transformed into exclusionary immigration policies directed at individuals categorized as nonwhite, demonstrated by the difference in treatment of Chinese immigrants compared to Irish immigrants. For the next century, immigration policy continued to exclude nonwhite individuals through qualitative and quantitative restrictions. In order to justify these restrictions, nonwhite immigrants were portrayed as economic and national security threats to the United States.

Among the subsequent immigrant groups deemed to be non-white were Muslims. Judges relied on “tests” related to common knowledge and science to create legal boundaries of whiteness that Muslims did not belong to, demonstrating that Muslims were excluded from entry into the United States long before the Muslim Ban. The Ban, therefore, is simply an extension of racist U.S. immigration policy that excludes individuals deemed nonwhite. Despite the overt racist nature of the Ban, legal challenges to the Ban and other immigration policies rooted in white supremacy have largely not succeeded due to immigration exceptionalism that arises from the plenary power doctrine, a doctrine that the Supreme Court has relied on for centuries to exclude nonwhite immigrants.

Although Donald Trump lost the 2020 election, racist immigration policy in the U.S. exists beyond one presidential administration--it has deep roots in the U.S. immigration system that continue to shape immigration policies implemented today. To change the course of immigration policy, there must be an honest reckoning with this country's dark immigration history, one that not only acknowledges its racist nature but also posits legal arguments that challenge the application of the plenary power doctrine, especially in the presence of evident animus. Until this is accomplished, the United States will continue to uphold white supremacist policies that exclude individuals deemed nonwhite, harming countless people in the process.


Tina Al-Kherson is a graduate of the University of Michigan Law School (2022).

Azadeh Shahshahani is Legal & Advocacy Director at Project South and a past president of the National Lawyers Guild.