When President Donald Trump directed his travel ban, the most aggressive executive order of his first week in office, at foreign nationals, he was following a well-trod path. It is always easier to sell a national security measure if it sacrifices the rights of others rather than those of citizens. But as I explained in an earlier post, the strategy failed. State attorney generals, university presidents, leading science associations, major technology companies, and former national security and foreign service officials all came out strongly against the order. Tens of thousands of Americans gathered at airports across the country to protest the order—even though it did not implicate their rights directly. And the courts immediately responded by blocking the order’s enforcement.
Now, Trump has issued a replacement executive order, one that his lawyers evidently felt would be easier to defend. Where the original order barred all immigration for ninety days from seven predominantly Muslim countries, the new one bars immigration from six of the original seven. Iraq was removed from the list, apparently after substantial behind-the-scenes pressure from government officials who were worried that we had jeopardized our relationship with Iraq, an important US ally. The new order does not bar lawful permanent residents and others from those six countries who have already been granted visas. It applies only to those seeking new visas. And where the initial order suspended refugee admissions from Syria indefinitely, and from all other countries for one hundred twenty days, the new order subjects Syrian refugees to the same suspension as everyone else.
Some of the commentary about the new order has suggested that these marginal changes have made it less vulnerable to legal challenge. It will certainly be less disruptive; because the order exempts current visa-holders and does not go into effect until March 16, it shouldn’t cause the same chaos we saw at airports the weekend that the first order was signed. The decision to exempt current visa-holders also means that the order does not strip individuals in the US of rights previously granted to them, as the first order did. Moreover, the new order eliminates a provision in the first order that made a case-by-case exemption from the refugee ban available for persons of “minority” faiths in their country of origin, a provision Trump had admitted was designed to favor Christian refugees. The new executive order, however, retains a case-by-case exemption authority, so the government could still favor Christian refugees in practice.
Most importantly, the new order still shares the central defect of its predecessor: it is a “Muslim ban” in intent and effect. The strongest objection to the initial order was that it was designed to target Muslims, fulfilling Trump’s oft-repeated campaign pledge to keep Muslims out. Removing Iraq from the list still leaves six countries, all of whose populations are at least 90 percent Muslim. And all the evidence that pointed to the illegal intent underlying the first order applies with equal force to the second order. It consists of the many times Trump promised to ban Muslims during the campaign; the explanation from his advisor Rudy Giuliani that Trump asked him how he could put a Muslim ban into effect that would survive a legal challenge; and Trump’s own admission, the day the first order issued, that it was designed to prefer Christians over Muslims. These are smoking guns, admissions of illegal intent, because the Establishment Clause forbids the specific disfavoring of any specific denomination.
The new order continues to target predominantly Muslim countries, and the government has done little to refute the obvious inference that Trump is naming these countries as a way to keep out Muslims. (That the order does not bar all Muslims is no defense, just as it would not be a defense to a claim of intentional race discrimination in hiring for a company to point out that it had hired some African Americans.) Trump’s close adviser, Stephen Miller, admitted that the new executive order would be a replay of the first, saying that any changes to the first executive order would be “mostly minor, technical differences….Fundamentally, you are still going to have the same, basic policy outcome for the country.”
The administration maintains, as it did with the first, that the order is justified by national security concerns, but that justification is evidently a pretext. Indeed, before the second order was released, two internal Department of Homeland Security memos emerged that called into question any national security justification for targeting the six listed countries. The first memo reported that citizens from these countries are “rarely implicated in US-based terrorism,” and more generally that citizenship is not a good indicator of terrorist threats. A second memo further undermined the rationale for the country-specific ban, finding that “most foreign-born US-based violent extremists likely radicalized several years after their entry into the United States.” If the conclusions of Homeland Security officials, based on years of expertise fighting terrorism, are correct, potential terrorists are not likely to be identified through the kind of “extreme vetting” Trump says he can’t yet do with respect to the six banned countries. And banning immigration from these countries for 90 days will do nothing to protect national security.
On Friday, the point was dramatically underscored when 134 former national security and other high government officials wrote a letter to the president concluding that “the revised executive order is damaging to the strategic and national security interests of the United States.” Among the signers were former secretaries of state Madeleine Albright and John Kerry, former CIA deputy directors John McLaughlin and David Cohen, former secretary of homeland security Janet Napolitano, and twenty-six retired generals and admirals.
Because it discriminates on the basis of religion and is not narrowly tailored to protect national security, the new executive order violates what the Supreme Court in Larson v. Valente has called “the clearest command of the Establishment Clause,” namely, “that one religious denomination cannot be officially preferred over another.” The Trump administration objects that the order does not target Muslims as such, but six countries that happen to be overwhelmingly Muslim. But as the Supreme Court held in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah:
Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality….[The] Clause protects against governmental hostility which is masked, as well as overt. The Court must survey meticulously the circumstances of government categories to eliminate, as it were, religious gerrymanders.
It would be difficult to imagine a stronger case of impermissible religious discrimination than this one. The president has admitted his purpose on multiple occasions.
Imagine if the mayor of a town promised repeatedly during a campaign for office that he would keep African Americans out of the town, and then, upon election, adopted a policy barring entry from six cities with populations that were 90 percent African-American. Would anyone doubt that the policy discriminated on the basis of race? Substitute Muslim for African-American, country for city, and president for mayor, and you’ve got the current executive order.
Some argue that the rules are different when it comes to immigration, because the political branches historically and necessarily exercise substantial discretion in determining who may enter the United States. But that discretion has never included the power to impose an exclusionary religious litmus test. Regulation of immigration, by necessity, requires that the political branches have the discretion to treat different countries differently, and to treat some family relationships more favorably than others. But nothing in the nature of immigration policy, either necessarily or as a matter of tradition, requires that the president of the United States be free to discriminate on the basis of religion. There is no evidence that Congress intended to give the president that power, and its exercise violates the core Establishment Clause requirement that the government maintain strict neutrality between religious denominations.
The new order has already been challenged in several courts, including by the state of Hawaii, the ACLU and the National Immigration Law Center, and the state of Washington. (I am co-counsel in the ACLU lawsuit, which will be argued Wednesday in Maryland.) All assert principally that the order continues to violate the Establishment Clause, and should be barred from going into effect. On Friday, a federal court in Wisconsin issued a narrow “temporary restraining order” barring the government from enforcing the new order against a Syrian refugee who is seeking to get his wife and child to join him from Syria. The judge did not rule on the order’s legality, but issued a temporary injunction to ensure that it would do no harm before its legality could be determined. Decisions in the other cases could come in the next few days. Soon we will know whether the courts will permit Trump to introduce outright religious discrimination to the nation’s immigration law.
David Cole is the National Legal Director of the ACLU and the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. (March 2017)