Cross-posted at The Daily Beast.
In an effort to get around court decisions, the new order excludes from its purview legal permanent residents (green card holders) and those holding valid visas, while banning all other travelers from six Muslim majority countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq, which was covered by the original order, has been removed from the list because of its cooperation in U.S. efforts against the Islamic State and assurances that authorities there will step up vetting of Iraqis seeking to travel to the United States. While the new order removes the preferential treatment of religious minorities—read non-Muslims—that made the previous version facially discriminatory, the defects of the scheme are far deeper than these changes can fix.
The decision of the 9th Circuit in the Washington State case, which halted enforcement of the original ban across the country, covered not only the green-card and visa holders excluded from the new order but also a much larger group: people from the banned Muslim countries who don’t currently have visas but would like to come to the United States to see their families, study at our universities, do business or even just visit. The administration’s obvious play here is to focus the courts’ attention on this last group, who do not already have a recognized immigration status.
People seeking to travel to the United States traditionally cannot claim the right to a visa and are the most vulnerable to being excluded. But American Muslims surely do have rights, which are very much at stake with this attempt to bar those who share their faith.
As the Supreme Court has stated, the “clearest command” of the constitution’s Establishment Clause is that the government cannot prefer one religion over another. This imperative is inextricably tied up with the right to exercise one’s religion, which would be difficult, to say the least, in an atmosphere where one’s faith was officially disfavored. By prohibiting visas only for people from Muslim countries, the executive order disfavors Islam and stigmatizes Americans Muslims.
This is the case even though the new order removes the obvious preference for non-Muslims in the first order, and instead claims a security rationale. The Establishment clause is violated when the purpose of a law is to institute a religious preference, even when that law is written in neutral terms. And, evidence of the purpose of Trump’s order is abundant. Virginia federal district court Judge Leonie Brinkema enjoined the original ban as discriminatory, relying on President Trump’s statements advocating a “Muslim ban” and those of his adviser Rudy Giuliani as evidence of its true purpose.
At the same time, recent leaked documents from the Department of Homeland Security severely undercut the stated security justification. A document obtained by Rachel Maddow of MSNBC shows that the small number of foreign-born persons who have carried out terrorist attacks in the United States mostly did so years after they came to the country; visa screening and vetting could not have predicted their subsequent actions. Another DHS analysis concludes that nationality is a poor proxy for potential terrorist activity.
Even though Trump has adjusted some aspects of the order, its original purpose is dispositive. A 2005 case striking down a Kentucky courthouse display of large, readily visible copies of the Ten Commandments is instructive. Due to the objections of civil-rights groups, the display had been modified into a broader exhibit on the foundations of American law, and eventually included other documents such as the lyrics of the Star Spangled banner. The Supreme Court ruled that even if the new exhibit would be constitutional under other circumstances, the history of the litigation demonstrated the government’s true purpose to favor Christianity.
Of course, courts traditionally accord the president considerable deference in matters of national security and immigration and he has broad statutory authority to exclude aliens from the United States. But deference does not mean a blank check, as the Supreme Court has repeatedly made clear. Even in the context of highly sensitive cases of military detention at Guantanamo Bay which had been authorized by Congress, courts reviewed the actions of the executive branch and forced changes to protect the rights of the foreign nationals imprisoned there.