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Analysis

Trump’s Travel Ban Is Still Unconstitutional

And we will 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)