On Tuesday, six justices of the US supreme court reached a compromise on Donald Trump’s travel ban, making fine distinctions about who he can and cannot ban from the US. Trump can’t ban people from the six Muslim-majority countries if they have a close relationship to a person or entity in the US, the court said, but he can ban people if they don’t.



Many commentators have suggested that this is essentially a complete win for those who oppose Trump’s travel ban. At a high level, that is true: most people from the affected countries who seek to enter the US will have obtained a visa that required them to have a relative, job or some other connection in the US that would seem to protect them from the president’s wrath under the court’s test.

Trump doesn't want Muslims in the US. That's OK with the supreme court | Moustafa Bayoumi Read more

In practice, however, fine distinctions can open the door to vast discrimination – the very object of Trump’s campaign of animus against people of the Muslim faith, which drove the lower courts to take a more complete approach to blocking his executive order.



To understand the impact of the supreme court’s decision, it is important to appreciate what it is like to be Muslim in the US today: that your religion exposes you to the all-but-accepted reality of routine deprivations of liberty and privacy each time you present yourself at the border.



This discrimination (whether subconscious or otherwise) is an unwritten condition of your right to be in this country. It is the consequence of your apparent offense of Flying While Muslim.

For this reason, many (if not most) Muslims today approach basic interactions at the US border with trepidation, out of fear that border officials will (again, perhaps subconsciously) exercise their discretion to impose secondary screening, invasive questioning or intrusive searches based on their religion. This fear is rational – if it is not based on firsthand experiences, it is likely based on those of family or friends.



And it is rational even when the strength of your connection to the US means that you cannot lawfully be denied entry. There are myriad examples of American Muslims – people who have an unqualified and irrevocable right to enter the US – being met at the border by practices such as discriminatory religious questioning, invasive cellphone searches and even temporary denial of entry.

The supreme court’s new distinction creates yet another discretionary determination that awaits certain Muslims at the border. If you are from one of the affected countries, an individual border official will decide whether you have a sufficiently “credible” or “bona fide” relationship to someone or something in the US, such that you avoid application of the entry ban.



Moreover, based on the court’s decision, you will have little idea what documentation that official will want to see in making that determination and the official may believe he has little constraining his discretion (aside from the few examples provided by the court).

The inevitable result is that Muslims who do have substantial connections to American citizens and American entities – people who are clearly intended to be exempt under the court’s test – will be exposed to further discriminatory questioning (again, subconsciously or otherwise) and, at least in the first instance, subject to the whim of the person who meets them at the border.

This point appeared to be lost on the court, which seemed to believe that affording discretion to deny entry to those people who fail its test will have no impact on those people who should pass its test. That reasoning reflects a fundamental misapprehension of what it is like to arrive in the US as a Muslim today.

To be sure, the court’s decision is far more tolerable than reinstating the travel ban in full, as the three dissenting Justices would have done. But when carving lines into Trump’s travel ban, the court may well have unleashed some of the vitriol that lies directly beneath.