Khizr Khan Is Back, And He’s Lobbying The Supreme Court To Stop The Travel Ban

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Kevin Daley Supreme Court correspondent
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Khizr Khan, the Gold Star father who feuded with President Donald Trump during the 2016 presidential election, filed an amicus (or “friend-of-the-court”) brief at the Supreme Court urging the justices to uphold injunctions on Trump’s latest travel sanctions.

Khan, whose son Capt. Humayun Khan was killed in Iraq in 2004, said the travel ban disgraces the memory of his deceased child, whose death is recounted in specific detail in the brief’s opening pages.

“The latest version of President Donald Trump’s ‘Muslim Ban’ not only desecrates Humayun Khan’s service and sacrifice as a Muslim-American officer in the United States Army, but also violates Khizr Khan’s own constitutional rights,” the filing reads.

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The brief challenges the argument, often invoked by supporters of the ban, that the president has significant power in the immigration area. Khan says Congress alone sets immigration policy, and the president’s discretion in executing its enactments is quite limited. In this case, he says Trump’s actions are wholly at odds with congressional intent, since federal law prohibits discrimination on the basis of nationality in the issuance of visas.

Khan’s filing also briefly sketches the constitutional argument against the ban. Critics, invoking the president’s rhetoric during the campaign and a handful of statements made since taking office, say the policy’s true purpose is to disparage Muslims in violation of the Constitution’s ban on religious favoritism. They contend these remarks continue to infect subsequent iterations of the travel sanctions, though counsel for the challengers has conceded in lower courts that their power attenuates with time.

Under the high court’s “reasonable observer” test, which Khan invokes, laws violate the Constitution when the average person divines discriminatory intent from the government’s actions.

“The message is that Muslims are unwelcome outsiders,” the brief reads. “And that message has been received loud and clear—not only by Muslims like Mr. Khan, but by those who have been denigrating and attacking Muslims with increasing frequency and vehemence since President Trump called for, and then began trying to implement, his unconstitutional Muslim Ban.”

The current travel restrictions impose varying degrees of penalties on eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Somalia, and Yemen.

Arguments in the case, Trump v. Hawaii, will be heard April 25.

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