It’s Unconstitutional

Trump’s executive order is an unlawful attack on Muslims that must be struck down in its entirety.

Demonstrators gather near the White House to protest President Donald Trump’s travel ban on seven Muslim countries on Sunday in Washington.

Zach Gibson/Getty Images

On Saturday night, several federal judges ruled that part of Donald Trump’s immigration ban, which targeted refugees from Muslim-majority countries, likely ran afoul of the United States Constitution. The rulings freed hundreds of lawful immigrants who were detained pursuant to Trump’s executive order and threatened with deportation. Protesters who had gathered at airports around the country rightfully celebrated the rulings as an extraordinary victory.

But that triumph was really just the start of the legal battle against Trump’s discriminatory executive order. The Saturday decisions apply only to immigrants who were already in the U.S. or on their way here when Trump signed the order, because the government was actively depriving them of liberty without due process. The rulings do nothing for the thousands of refugees overseas who, as long as the executive order stands, will still be denied entry simply because they are Muslims from majority-Muslim countries.

Luckily for these refugees, the entire executive order—not just its application to those currently in the country—is unlawful. Trump’s attempt to discriminate against refugees on the basis of religion is just as unconstitutional as his efforts to detain and deport lawful immigrants already in America without due process. Any Muslim refugee who was in the process of obtaining a visa when Trump signed his order should have standing to challenge its constitutionality in a U.S. court. Trump’s de facto Muslim ban is a violation of the First Amendment’s Establishment Clause, which prohibits the government from favoring one religion over another. And the courts should strike down the order as an unlawful effort to discriminate against Muslims by executive diktat.

The Establishment Clause forbids the government from making any law “respecting an establishment of religion.” As the Supreme Court explained in 1982’s Larson v. Valente, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” This constitutional requirement, the court noted, is “inextricably connected with the continuing vitality of the Free Exercise Clause,” guaranteeing religious liberty for all by barring “favoritism among sects.” The court has also declared that the government may not “aid or oppose any religion. This prohibition is absolute.”

Trump’s executive order officially prefers Christians and Christianity and disfavors Muslims and Islam. The order is sloppy and at times indecipherable—it was apparently signed without any input or review by the executive agencies it affects—but whoever wrote it was smart enough to attempt to dress up its animus in pretext. That pretense, however, does nothing to obscure its discriminatory intent and effect. In addition to targeting seven majority-Muslim countries, the order suspends the U.S. Refugee Admissions Program for 120 days, no matter a refugee’s country of origin. When that freeze ends, the order directs the secretary of state, “in consultation with the Secretary of Homeland Security,” to

make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. (Emphasis mine.)

That limitation is critical—and illegal. It is normal to prioritize “refugee claims made by individuals on the basis of religious-based persecution.” There is a long-standing and bipartisan agreement that America’s refugee policies should always focus, at least in part, on those being persecuted on the basis of religion. But this principle is dramatically altered in the very next clause, which states that a refugee persecuted because of his religion will only be prioritized if he “is a minority religion in the individual’s country of nationality.”

The purpose of this limitation is obvious when applied to the Muslim-majority countries with which Trump is concerned: It favors Christian refugees over Muslim refugees. Trump’s executive order will not help Muslim refugees in Muslim countries who face religious persecution. It is instead designed to help Christians in Muslim-majority countries. On a textual and structural level, the order distinguishes between refugees on the basis of religion, helping Christian refugees because they are Christian, and turning away Muslim refugees because they are Muslim. This discrimination plainly contravenes the “clearest command” of the Establishment Clause.

As ACLU National Legal Director David Cole has written, Trump’s own comments amply support this interpretation of the order. Throughout his campaign, Trump repeatedly called for “a total and complete shutdown of Muslims entering the United States.” He also effectively admitted that he would dress up his Muslim ban in the pretense of a neutral immigration restriction. “People were so upset when I used the word Muslim,” he said on Meet the Press on July 24. “Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.” When a reporter read him Mike Pence’s tweet criticizing his proposed Muslim ban on the July 17 edition of 60 Minutes, Trump responded, “So you call it territories, OK? We’re gonna do territories. … Call it whatever you want. We’ll call it territories, OK?”

Trump’s order does indeed attempt to use the pretext of “territories,” but it cannot conceal the anti-Muslim animus that lies just beneath its surface. If Trump’s previous comments aren’t enough evidence, consider what his adviser Rudy Giuliani admitted on Saturday night while being interviewed on Fox News: Giuliani explained how he helped Trump create a Muslim ban that would also be legal, per the president’s request. “When he first announced it, he said, ‘Muslim ban,’ ” Giuliani explained.

He called me up and said, “Put a commission together. Show me the right way to do it legally.” I put a commission together … and what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on. It’s not based on religion. It’s based on places where there are [sic] substantial evidence that people are sending terrorists into our country.

But unfortunately for Trump and Giuliani, an unconstitutional executive order does not become lawful because it is dressed up in fatuous legalese. And while courts are sometimes hesitant to examine a law’s legislative history to uncover its true intent, they should not ignore Trump’s own descriptions of his goals. Unlike a congressional act—which requires the votes of myriad people, some of whom may have different views of the bill before them—this executive order was signed by one man: Trump. He is responsible for it, and his words should guide the courts’ interpretation of its meaning and intent.

There are other legal avenues to challenge the Muslim ban. Cato Institute’s David Bier argues persuasively that Trump’s order reaches beyond his executive authority and violates a federal law that forbids discrimination based on national origin in the immigration system. The Fifth Amendment’s Due Process Clause also contains an equal protection component that bars discrimination on the basis of religion, which bolsters the Establishment Clause claim. (In freeing immigrants detained under the order on Saturday night, multiple federal judges cited equal protection principles.) But whatever the exact line of attack, the basic legal logic is straightforward and airtight. The government has no constitutional authority to discriminate against Muslim refugees because of their religion. And that is precisely what Trump just attempted to do.