THE WHITE HOOD BENEATH THE RED CAP:

In one landmark 19th-century case, Yick Wo v. Hopkins, the city of San Francisco used a seemingly "neutral" policy to oppress a group of migrants--in that case, people of Chinese ancestry. The city's law, a complex ordinance for regulating laundries, required anyone who wished to operate a laundry in a wooden building to seek a permit. As innocuous as that sounded, the Supreme Court ultimately found that the city's actual enforcement pattern showed that the wood buildings were being used as a proxy for race. In a unanimous opinion by Justice Stanley Matthews, the court ruled that "whatever the intent of the ordinances as adopted," they had been enforced "with a mind so unequal and oppressive as to amount to a practical denial by the state" of equal protection of the laws. The justices inferred discrimination from the pattern of enforcement: Every Chinese applicant had been denied a permit, while all but one white applicant received one. Moreover, the court deemed it irrelevant that the Chinese men were foreign nationals; the 14th Amendment guarantees due process and equal protection of the laws to all "persons," and these protections were treated as "the blessings of civilization," the judges ruled.

All of these principles are now well established in American law, and they have a clear bearing on the travel ban.

Indeed, Justice Anthony Kennedy, who provided the decisive fifth vote in the decision upholding Trump's travel ban, authored a separate concurrence specifically to highlight the point that the policy was valid only if it wasn't a vehicle for religious bigotry. "The First Amendment ... promises the free exercise of religion," Kennedy wrote. "It is an urgent necessity that officials adhere to these constitutional guarantees ... even in the sphere of foreign affairs," he said, contemplating the possibility that "further proceedings" might illuminate the issue further.

As more information about the ban's real-world enforcement emerges--and as immigrants' rights activists mount fresh challenges to the law--it looks more likely that those "further proceedings" will start to chip away at the policy's defenses. [...]

These new legal claims fall into two main categories. One is based on religious bias: If the administration denies waivers at such a high rate that its policy is tantamount to a religious ban in practice, then it could still run afoul of the First and 14th Amendments' guarantees of equal treatment for people of all faiths. The other is based on fairness: Even if the waiver program isn't being implemented in a fashion that discriminates on the basis of religion, it's possible the program still lacks sufficient procedural safeguards required by federal statutes or the Constitution's due process clause.

The religious equality argument ensures that government officials can't just hide behind a neutral policy while carrying out a nefarious plan to disadvantage Muslim people for who they are--what Justice Kennedy called "animosity to a religion." The fairness argument promotes a related set of norms also essential to American civic values: the predictable and fair administration of a policy, based on criteria that make sense.

During oral arguments, Solicitor General Noel Francisco pointed to the policy's waiver system and pleaded for the justices to afford the president's policy a presumption of "regularity and good faith." Asked by Justice Sonia Sotomayor to "represent to us that it is, in fact, a real waiver process," he said that "consular officers automatically apply the waiver process," but acknowledged, "I haven't looked at every single case" of waiver denials. This exchange is important because it suggests that the justices tried to get more information about how the ban was being implemented, but at the time, there were just too many factual questions and not enough answers.

Justice Stephen Breyer's dissent, joined by Justice Elena Kagan, lays out the road map for what challengers would need to prove if they want to show that the waiver program is a sham. "If the Government is not applying the system of exemptions and waivers ... then its argument for the Proclamation's lawfulness becomes significantly weaker," Breyer wrote. "[D]enying visas to Muslims who meet the Proclamation's own security terms would support the view that the Government excludes them for reasons based upon their religion."

At the time, Breyer pointed out that out of more than 8,400 applications in the first four months of the program, only 430 waivers had been approved. There was also a hint in the original lawsuit that consular officers might have very little discretion to issue waivers, despite what the policy said, but the majority of justices brushed aside these filings as "anecdotal evidence" not yet tested through a full trial or an equivalent process.

Today, however, we have more answers. During the first full year of the waiver program's existence, 98 percent of waiver applications were denied. Then, just last month, the State Department finally released a report that showed 2,673 waivers were granted in fiscal year 2018, while 37,000 visas were refused--meaning a whopping 94 percent of waivers were still rejected during the longer time frame.

Another way to look at the numbers is comparatively across countries. When we do so, we see that for the five Muslim countries that stayed consistently on the travel ban list, the number of immigrant visas approved dropped precipitously: an 81 percent drop overall from fiscal year 2016 to FY2018, ranging from a 68 percent decline for Libyans to a 91 percent decline for Yemenis. Similarly, the number of non-immigrant temporary visas from those five countries declined by 78 percent.

This exceedingly high rate of rejections alone is suspicious and warrants further investigation. Recent coverage also suggests that any waivers granted might even be done in an arbitrary or ad hoc fashion, such as when negative publicity is brought to bear on a particular request, or someone rich or famous supports an applicant.

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