Trump’s new travel order is still unconstitutional

Trump’s new executive order on travel and entry today continues to temporarily block entry to six predominantly Muslim countries (removing Iraq). It appears to fix two of the biggest constitutional problems:

  1. It no longer includes a preference for “religious minorities” in Muslim countries, a provision that was designed to benefit Christians over Muslims, as Trump himself said to the Christian Broadcasting Network.
  2. It clarifies that Green Card holders and those already holding visas are permitted to enter.

The Ninth Circuit, by a 3-0 decision, had blocked the first travel ban only on the basis of the Due Process clause of the 5th Amendment, a relatively narrow constitutional ruling that focused mainly on problem #2, because the Green Card holders and visa holders were denied due process.  Many observers criticized the “religious minority” exception because it most clearly violated the Establishment Clause in its text.

But the problem is that if this revision is only in response to the unanimous Ninth Circuit opinion, they don’t address the other constitutional problems under 14th Amendment (Equal Protection) and the Establishment Clause, and the two statutory problems based on the Immigration and Naturalization Act and the Religious Freedom Restoration Act.

Judge Leonie Brinkema of the Eastern District of Virginia focused on the Establishment Clause in her opinion blocking the first order on Feb. 13th.  It summarized President Trump’s public comments calling for a “Muslim ban,” for three pages. Even setting aside the preference for religious (Christian) minorities, it held that the public comments were sufficient to show an unconstitutional purpose of “advancing one religion over another” (citing McCreary County (2005) and Santa Fe (2000)).

Brinkema wrote, “The ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” Even if the ban did not apply to all Muslims, it was still discriminatory because “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise… It is a discriminatory purpose that matters, no matter how inefficient the execution.”

These same problems don’t magically disappear just because the old order has been revoked. You can’t “unring a bell,” as lawyers often say. Once government officials have stated the discriminatory purpose, they need to fix this problem with extra protections. The same purpose still applies here.

It seems to me that the only fix now would be to get rid of the blanket temporary bans on Muslim countries entirely, and actually implement a vetting plan without a ban. The problem would remain that the Trump administration could apply its vetting in a discriminatory way, but we can cross that legal bridge when we get to it (no immigration pun intended). This leads me to think that, because the Trump administration did not attempt to fix its order with a more permissible method — one that would survival legal challenges but also would be open to anti-Muslim manipulation in practice — then this “revision” is really meant to trigger another round of court battles to fire up the base and drive cultural wedges. Bannon wants a nationalist fight, a culture war, rather than effective policies. This new order is a second battle on this immigration front of the culture war. And their timing is intentional: a distraction from the Russian scandal/Sessions perjury charges, as lawyers will challenge this order all around the country.

In any event, Brinkema did not need to address the Equal Protection argument nor the statutory arguments under the Immigration and Naturalization Act (which prohibits religious discrimination) and the Religious Freedom Restoration Act. There are complexities to those arguments based on the legal standing of non-citizen non-residents without visas, which is why the Establishment Clause remains the most important barrier. But undoubtedly all of these arguments will get fleshed out in the near future in some big decisions.

I also wonder if there is a political cost to removing the “religious minority” exception, because Christian groups have mobilized to support persecuted Christians in Muslim countries. Now those refugees, who are the most popular refugees among the Republican base, are now unprotected and excluded. I wonder if any evangelical groups complain publicly. I would hope religious groups would complain about the ban for many humanitarian reasons.

 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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