Cato Institute Files Lawsuit Seeking Release of Report Used to Justify Trump’s Anti-Muslim Travel Ban

In 2018, a closely divided 5-4 Supreme Court upheld Donald Trump’s travel ban policy targeting residents of several Muslim-majority nations. In doing, so the Court relied in part on the notion that Trump’s notorious campaign promise to institute a “Muslim ban” was not the real basis for the policy, or at least not the only one. Rather, the travel ban was also justified by a supposedly objective and thorough government study concluding that people from the nations covered by the ban may pose special security risks.

Unfortunately, the administration never released that study to the courts, essentially claiming that judges should trust the government’s assurances, and defer to a study whose contents they were not allowed to see. The majority did just that, despite considerable evidence indicating that the study was little more than a flimsy smokescreen.

The Trump travel bans have since been revoked by Biden. But the study supposedly backing them still hasn’t been released. Thus, we still don’t definitively know whether and to what extent the Trump administration sought to deceive the courts about its contents and significance.

In a recently filed Freedom of Information Act (FOIA) lawsuit, the Cato Institute – a prominent libertarian think tank – seeks to force the Biden administration Department of Homeland security to release the Trump travel ban report, after DHS previously refused to release it voluntarily. Cato immigration policy specialist David Bier describes the lawsuit and its potential significance:

A new lawsuit by the Cato Institute could answer the question of whether the Supreme Court was wrong to accept assertions from former President Trump that his 2017 travel ban was based on security concerns, not animus against Muslims. Despite rescinding the ban, President Biden has still refused to disclose documents that Trump told the Court were the basis of his decision to ban immigrants from certain majority Muslim countries…

In a 5–4 decision, the Court’s majority found that the ban was based not on Trump’s open animus against Muslims, but instead on a Department of Homeland Security (DHS) report that supposedly detailed national security concerns. But the majority simply accepted this report as legitimate without ever seeing it. Indeed, DHS has allowed no one outside the Executive branch to see it.

After President Biden rescinded the ban—which he called “discriminatory”—I filed a Freedom of Information Act (FOIA) request on behalf of the Cato Institute for the DHS report. DHS ignored it, so now Cato is suing. It will be the first time Biden’s DHS will have to either justify keeping the report a secret from the public or else release it. Even if DHS refuses to release the report, the court can order it to do so.

Given that DHS’s new leadership labeled the ban “cruel” and “harmful,” DHS should have been forthcoming with the report that purportedly supported it. But not so far. DHS initially claimed not to be able to find the report. Cato appealed that de