Commentary: New Muslim Ban Still Violates the Constitution


Trump Imposes New Scaled-Back Muslim Plan

Six weeks after President Trump’s original executive order was blocked by the courts, a new order was issued Monday that blocks citizens of Syria, Iran, Libya, Somalia, Sudan and Yemen from obtaining visas for at least 90 days.

The order suspends admission of refugees into the U.S. for 120 days, directing U.S. officials to improve vetting measures for a program that is already widely regarded as extremely stringent.

“We cannot compromise our nation’s security by allowing visitors entry when their own governments are unable or unwilling to provide the information we need to vet them responsibly, or when those governments actively support terrorism,” Attorney General Jeff Sessions said Monday.

Farhana Khera, the president and executive director of Muslim Advocates, a civil rights legal organization, and Johnathan Smith, the legal director of the group, wrote in the New York Times:  “President Trump’s executive order barring immigrants from seven Muslim-majority countries experienced nearly universal defeat in the federal courts. On Monday, he issued a revised version of that order, but it still suffers from a fundamental, and fatal, flaw: It constitutes unlawful religious discrimination.”

They note that the changes exempt Iraq from the travel ban, reducing the number of impacted countries to six, as well as those who have visas or who are lawful permanent residents.

They write, “These changes are, no doubt, intended to address the due process concerns that led the United States Court of Appeals for the Ninth Circuit to affirm a lower-court ruling that put a hold on part of the original order. But while these changes are important, they do not fix the core problem with the executive order: The administration is waging an all-out assault on Islam and Muslims.”

California Attorney General Xavier Becerra issued the following statement regarding President Trump’s travel ban:

“President Trump’s decision to rescind his January 27, 2017 travel ban confirms what we all knew: the travel ban was unconstitutional and un-American. It represents a major victory for the thousands of lawful permanent residents and visa holders in California, as well as all those across our nation who cherish our Constitution, diversity, tolerance, and fairness.

“My team is carefully reviewing the legality of the Administration’s revised ban. We will do everything in our power to make sure the revised ban respects our Constitution and our way of life. No one will or should soon forget the Trump Administration’s multiple, public promises to ban Muslims from the country.”

“This executive order, like the last order, is at its core a Muslim ban, which is discriminatory and unconstitutional,” said CAIR (Council on American-Islamic Relations) National Executive Director Nihad Awad.

“As Trump administration officials have stated, this ‘Muslim Ban 2.0’ – which has been debunked by the Department of Homeland Security – appears to be merely a retooled order aimed at the same long-stated goal of banning Muslims from entering the United States,” said CAIR National Litigation Director Lena F. Masri, Esq.

Guest Commentary: The Only Way to Fix the Muslim Ban Is Not to Have a Muslim Ban

By Cody Wofsy

Today President Trump signed a new Muslim ban. The new executive order is a major retreat by the administration, reflecting that, as courts around the country have recognized, the original order was deeply flawed and totally unjustified. But the fundamental truth of this new order, like the old one, remains unchanged: The president promised to ban Muslims from the United States, and the ban is his attempt to make good on that unconstitutional and indefensible goal.

President Trump’s intentions regarding the Muslim ban have been clear. In a statement “ON PREVENTING MUSLIM IMMIGRATION” posted to his campaign website — and still available on it as I write — then-candidate Trump called for “a total and complete shutdown of Muslims entering the United States.” Again and again, he refused to disown this proposal, expressing his opinion that “Islam hates us” and that there are “problems with Muslims coming into the country.”

Instead of abandoning this odious idea in response to widespread criticism and outrage, Mr. Trump candidly explained that he would change the wording of his proposal but not its substance. “I’m looking now at territories,” he said. “People were so upset when I used the word Muslim. Oh, you can’t use the word ‘Muslim.’ Remember this. And I’m okay with that, because I’m talking ‘territory’ instead of ‘Muslim.’” Asked about the Muslim ban, he said, “[C]all it whatever you want. We’ll call it territories, okay?” Rudy Giuliani, former mayor of New York and advisor to the president, explained that Trump asked him to figure out “the right way” to establish the Muslim ban “legally” and that he and others settled on using the word “countries” to achieve Trump’s goal.

Sure enough, when the original Muslim ban was signed, it did not use the word “Muslim,” instead purporting to single people out for exclusion from the United States based on their nationality.

But it was no coincidence that the seven countries singled out were all overwhelmingly Muslim, and account for over 80 percent of Muslim refugees entering the United States from 2014 to 2016. It was no coincidence that the order carved out special treatment for certain religious minorities, which the president promptly explained was intended to help Christians. It was, in other words, no coincidence that the president who promised to ban Muslims from entering the United States signed an order that would ban a large number of Muslims from entering the United States.

Courts refused to buy this transparent attempt to avoid the bedrock American commitment to freedom and equality among religions. As the ACLU’s legal director, David Cole, explained before the original order was signed, a government action motivated by intent to discriminate on the basis of religion is unconstitutional even if the text of the order does not name a particular religion to be harmed. Courts across the country agreed. And, starting with a temporary stay won by the ACLU and its partners at the National Immigration Law Center, the International Refugee Assistance Project, and the Worker & Immigrant Rights Advocacy Clinic the night after the Muslim ban was signed, courts have halted the ban — including a unanimous panel of the Ninth Circuit Court of Appeals.

In response to these court losses, the president has now signed a new order. The order backtracks dramatically — exempting not only green card holders but all current visa holders, delaying the implementation of the order, and eliminating some of its glaringly illegal elements. These changes further undercut the administration’s weak national security case for the ban, already rebutted by the government’s own assessments and the administration’s repeated delays in issuing it — including putting off the new order to seek favorable media coverage.

Despite the substantial ground the president has now conceded in the face of his legal defeats, however, the heart of the order remains. The order still singles out individuals from six of the same overwhelmingly Muslim countries, as promised in the same repeated pledges to institute a Muslim ban, and does so purportedly based on the same debunked national security arguments. Indeed, any suggestion that this new order represents a clean break from the prior one or from the president’s comments is undercut by various statements coming out of the White House, describing the new order as “a revised policy” that would advance “the same basic policy outcome for the country.”

Ultimately, in other words, the most fundamental flaw of the Muslim ban remains the same: It is still a ban, signed by a president who promised to bar Muslims from entering the United States, motivated by an intent to discriminate against Muslims, and that overwhelmingly affects Muslims rather than those of other faiths. Neither the president’s original offer to “call it whatever you want,” nor this most recent attempt to “revise” the order while pursuing “the same basic policy,” alters that core truth.

The Supreme Court warned in McCreary County v. ACLU of Kentucky of “trivializing” the inquiry into the purposes of a law, rejecting a “naïve” suggestion that “any transparent claim” of nonreligious justifications is enough to save the law, regardless of its context and history. The courts and the American people are not so naïve. They have seen and will continue to see the order for what it is: an attempt to achieve President Trump’s promise to institute a Muslim ban.

The new order remains deeply unconstitutional and an affront to the principles on which this country was founded. We at the ACLU, and other organizations, advocates, states, cities, and individuals across the country, will keep fighting in courts and will keep voicing our opposition to this abhorrent religious discrimination.

Cody Wofsy is a Skadden Fellow with ACLU Immigrants’ Rights Project


About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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6 thoughts on “Commentary: New Muslim Ban Still Violates the Constitution”

  1. Sam Bivins

    The first order had a number of glaring problems that made it much easier to conclude that it was the product of animus.  This order largely cures those problems, and now a politician’s campaign trail statements seem to be the main rationale for the purported unconstitutionality of this version of the order.

    I am about as anti-Trump as it gets, but it’s a dangerous and slippery slope to prevent a president from implementing any version of a national security policy based on campaign statements.  There’s so much ammunition against this order on the merits.  I’m pretty uncomfortable that this ACLU lawyer is willing to invalidate the order based solely on campaign speech.  In some ways, his position seems to contradict the mission of the organization.

      1. Sam Bivins

        Right, the question is how you get there.  Under a pair of Supreme Court cases (Kerry v. Din and Kleindienst v. Mandel), as long as the President gives a facially legitimate reason for excluding a non-resident alien, courts accept that reason as justifying the order unless the plaintiff can make an affirmative showing of bad faith.  So how do you affirmatively show bad faith? Not through Giuliani’s statements–those apply to the first order.  And hopefully, not through campaign trail statements.

        Eric, I don’t know that it matters whether there’s no documented connection between those countries and recent terrorist activity in the U.S.  As long as there are some connections to terrorist activity anywhere in the world, that ought to be enough (unless you want to argue that we should have to wait for an actual attack before we can exclude folks from a particular country, which I don’t see as a winner).

        To my mind, challenging this order as unconstitutional is going to be a pretty tough road to hoe.

        1. Eric Gelber

          Sam – I haven’t read the cases you cite, but the EO here is not about excluding “a” non-resident alien. It’s about excluding an entire group based on their nationality and, assertedly, their religion. The revised EO is not entirely independent of the original order; it’s a modification to overcome constitutional challenges. The underlying intent is the same–so it can reasonably be argued that if the intent of the first Order was to ban Muslims, that’s also the intent of the revised Order. If a connection with terrorism anywhere in the world were the criterion, then the Order wouldn’t be limited to Muslim majority countries. There remain strong arguments that we’re still dealing with an unconstitutional Muslim ban.

        2. Sam Bivins

          Eric – I see your point, but I question whether a court would continually ascribe bad intent after there’s been a pretty clear effort to deal with the religious issue (which the courts could get at facially on the first order through the whole “minority religion” clause and the failure to exclude lawful permanent residents).  I don’t see any facial religious discrimination in this one, and at some point, the government has to be able to adapt its laws and practices to achieve its goals (here, assertedly, national security) in response to court orders.  I don’t think we would be well served by a legal system that acts otherwise, and I have to think/hope that the courts will consider that prudential concern. You factor the amount of deference the president gets on national security issues into it, and I don’t see much room for a winning constitutional argument.  Uncommonly stupid national security decisions are rarely subject to successful constitutional challenges.  (See e.g., Bush, George W.)

          I agree with you on the national origin bit, but that issue seems to fall more appropriately under the Immigration and Nationality Act of 1965.

          At any rate, I say we wager a beer at the brewery of your choice that the Ninth Circuit upholds this EO under the constitution, or more likely, that it punts on the constitutional issue and deals with it solely on statutory grounds.  Sad and strange times that we’re even in a position to have this conversation.

    1. Eric Gelber

      The challenges to the Executive Orders are not solely based on campaign statements. The orders are being challenged on constitutional grounds. The campaign statements, however, were and still are evidence of intent. Moreover, Trump close advisor Rudy Giuliani, who reportedly had a hand in drafting the first Order, admitted it was a “Muslim ban.” In addition to the continuing fact that the revised Order is aimed at majority Muslim countries with no documented connection to recent terrorist activity in the U.S., coupled with the fact that Iraq was omitted from the revised Order, is evidence that national security is not the true purpose.

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