Trump’s Travel Ban Is Still Unconstitutional

And we'll keep challenging it in court

October 22, 2018

This June, the Supreme Court in Trump v. Hawaii held that President Trump’s ban on travel from a set of predominantly Muslim countries could for now be implemented, ignoring reams of evidence that it was motivated by religious animus rather than genuine national security concerns. But the Court’s decision doesn’t completely foreclose legal challenges to the policy. So we’re continuing to press forward: Earlier this month, the Brennan Center updated and refiled a complaint in Zakzok v. Trump, our lawsuit against the ban.  

First, some background on the scope of Trump v. Hawaii. The Supreme Court ruled on whether the travel ban could be enforced as challenges continued in the lower courts. Legally speaking, it considered whether to affirm a “preliminary injunction” against the government. A preliminary injunction is an assessment made with a more limited universe of evidence and subject to higher legal requirements than those challengers must meet to eventually win a judgment on the merits of a case. 

In holding that the ban could go into effect, however, the Court raised the bar for a successful constitutional challenge by putting forward a legal standard exceedingly deferential to the government. The Court did not adopt a test often applied when it’s alleged that the government has pursued a religiously discriminatory policy, in violation of the Establishment Clause of the First Amendment. That test asks the Court to consider whether “a reasonable observer would view the government action as enacted for the purpose of disfavoring a religion.” Under this “reasonable observer” test, it is difficult to see how the Court would have allowed the ban to go into effect given the rich record of President Trump’s anti-Muslim statements, including those linked to the ban. Instead, the Court adopted a standard that essentially requires claimants to show that animus is the only way to explain the ban. 

We believe that the ban doesn’t even meet the requirements of this deferential test. In addition to the president’s anti-Muslim comments, our recent complaint offers a substantial amount of public information that undermines the administration’s story about the policy’s genesis, some of which was added after our initial filing in October of last year. Here are some highlights:

  • Dissenting in Trump, Justice Stephen Breyer wrote: “[I]f the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a “Muslim ban,” rather than a “security-based” ban, becomes much stronger.” Public materials suggest that the waivers from the ban are not being granted to eligible people, numbering in the thousands: Indeed, government statistics from earlier this year show they are likely being granted at an infinitesimal rate (2.5 percent as of April 30). And former State Department officials have called the waiver scheme “window dressing,” or a pretext to hide discriminatory motives. (For more information on the waiver system, take a look at related litigation brought by Muslim Advocates challenging it and government guidance outlining the strict terms of its implementation.)
  • Text in the first Muslim ban — a policy functionally equal to the current version — was lifted more or less verbatim from an August 2016 speech then-candidate Trump gave entitled “Understanding the Threat: Radical Islam and the Age of Terror.”  
  • The administration’s “worldwide review” to identify inadequacies in the vetting practices of the world’s nearly 200 countries, and inform which to target with travel restrictions, was in fact a mechanism to reverse engineer the original Muslim ban. As mentioned, the current ban substantially overlaps with previous iterations released before the review. However, it excludes people from many countries that meet the review’s requirements and permits travel from those that don’t. 
  •  The government’s inclusion in the ban of non-predominantly Muslim countries is a red herring. In practice, very few people will be affected from those countries. With respect to Venezuela, the ban only applies to business and tourist visas for certain government officials and their immediate family members. And though North Korea has a population of about 25 million, only 109 visas were issued to its nationals in 2016. (Further, it’s unclear whether the average North Korean would have, even before the ban, been able to get authorization from their government to travel to the U.S.)

Simply put, given these facts — and a range of other evidence — there’s a more-than-adequate basis for claims against the travel ban to proceed in the lower courts. And we’ll continue to challenge it.

(Photo: Mark Wilson/Getty)