On Friday, a federal judge allowed Virginia to intervene in ongoing litigation over Donald Trump’s Muslim ban in order to protect Virginians who might be detained, deported, or denied re-entry under the executive order. The state’s complaint eloquently explains why the ban infringes upon immigrants’ due process and equal protection rights while violating The First Amendment’s Establishment Clause. However, the most striking section arrives at the end when the state invokes Justice John Marshall Harlan’s famous dissent from the Supreme Court’s decision to uphold segregation in Plessy v. Ferguson:
This is a monumental case involving a monumental abuse of Executive Power. So it is worth remembering another monumental case, Plessy v. Ferguson, that enshrined in American law—for more than a half century—the approval of government-mandated racial segregation. The majority in Plessy reasoned that government-mandated segregation “does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens.” We admire the first Justice Harlan for putting the lie to that claim: “Every one knows” what was being justified, he said. The same is true here.