Rev. Martin Luther King, Jr. once said that "We may have all come on different ships, but we're in the same boat now."
If only Donald Trump had read Dr. King’s words and taken them to heart. Instead, his executive order attempting to close our borders to an entire group simply because of their religion flatly contradicts King’s noble sentiment. Instead of recognizing that Muslim immigrants are humans, and that legally present Muslim immigrants with valid visas or other papers are entitled to all the rights of legal immigrants of other religions, the President has singled them for religious-based discrimination.
The President’s executive order barring entry to the United States for anyone from one of seven majority Muslim countries has already been found to be legally questionable (to say the least) by courts in New York, California, Washington State and Virginia. And it’s no wonder why: The order unconstitutionally targets individuals from a specific religious background and singles them out for discrimination. It’s a lesson most of us learn in fifth grade history class: America has a separation of church and state, and the government cannot favor one religion above another. But that’s exactly what this order does. There are no bans on travelers from majority Christian, majority Jewish or majority Hindu nations.
But while the Trump Administration has grouped all Muslim immigrants and refugees from these seven countries together for the purposes of denying them entry into the United States, it doesn’t want them grouped together when they try to go to court. Instead – in the hopes that most of these travelers will be expelled from the country before they can ever find legal counsel, much less set foot in court – the Administration is insisting their legal challenges be judged on a case-by-case basis.
That’s wrong, and would deny thousands of people – including refugees seeking safe harbor from unspeakable violence in their home countries – their chance at a fresh start in America. And that’s why Public Justice has partnered with the law firm of Lieff Cabraser Heimann & Bernstein on a brief we filed this week, asking the courts to rightly recognize that these men, women and children are being treated as a group by the President’s executive order and so should be treated as a group when the courts consider challenges to that order, too.
It’s hard to overestimate how important this is in order to ensure the rights and safety of immigrants and refugees are protected. If the individuals and families targeted by Trump’s order are not considered a class by the courts, a new case would have to be brought each and every time someone was detained or removed. And beyond the sheer number of cases that potentially creates, there is also another nearly insurmountable problem: Once someone is removed, they’re out of the country and it’s nearly impossible to help them. And even if they are detained on American soil, Customs and Border Patrol’s position is that they are not allowed to speak with a lawyer under those circumstances either.
That makes no sense and puts the lives of immigrants and refugees in jeopardy. For many of them, class protection is literally a matter of life and death. And that’s not an alternative fact.
The original plaintiffs challenging the President’s travel ban included a heroic Iraqi interpreter and electrical engineer who risked life and limb to assist our servicemen and women in his home country. He was traveling to the United States on a valid visa he was given because his life was in danger at home. Another was the husband of an Iraqi citizen who was traveling to the U.S. to be reunited with his wife whose safety was also jeopardized because of her assistance to American personnel in the Middle East.
But because both men have now been released from detention – thanks to the intervention of the ACLU and the courts – the government argues there is no remaining case to be heard by the courts. (Or, in other words, their claims are moot.) And because there is no remaining case, there can be no plaintiffs left to certify as a class. It’s a trick corporations have tried to use for years to keep consumers out of court: Try to get rid of every lawsuit challenging a wrong by making an exception for the person who brought the lawsuit before it gets certified as a class.
If that argument were to be accepted here, the government could enforce the ban indefinitely by exempting individual plaintiffs – when there were any lucky enough to reach U.S. soil and secure legal representation – as their individual cases are brought forth.
We don’t believe the government should be allowed to do that, and the law is on our side: When a case involves “transitory” potential plaintiffs – as this case clearly does – the courts don’t lose jurisdiction simply because the named plaintiffs no longer have an ongoing claim. No one – including the President of the United States – is allowed to get away with unconstitutional behavior simply because no one is in a position to challenge it long enough to get a ruling that applies to everyone.
Or, as we also learn in fifth grade history class, “No one – not even the President of the United States – is above the law.”
Donald Trump put Muslim immigrants and refugees in this boat together. Now, it only makes legal – and common – sense that the rising tide of justice should lift them all up together.