The Constitutional Arguments Against Trump’s Travel Ban Micah Pollens-Dempsey March 31, 2017 Politics On March 15, a day before it was supposed to come into effect, President Trump’s revised travel ban was blocked by a temporary restraining order issued by a federal district court judge in Hawaii. The next day, a judge in Virginia blocked a narrower part of the ban. A week later, a judge in Virginia upheld the ban as constitutional, disagreeing with the other two rulings. Many people view the constitutionality of the travel ban as a simple or settled issue, but the disagreement among judges suggests it is more complex than it appears. This is a summary of the legal arguments surrounding the travel ban. The Travel Ban The travel ban itself is an executive order signed by President Trump. It includes a ninety-day ban on entry into the US for the citizens of six Muslim-majority countries: Iran, Somalia, Sudan, Yemen, Syria, and Libya. Unlike the first travel ban, the revised ban does not affect current visa or green card holders. The order also cuts the number of annual refugees entering the US from 110,000 to 50,000. While the first executive order blocked all Syrian refugees indefinitely, this ban only blocks them for 120 days. Establishment Clause Arguments For most opponents of the travel ban, the arguments are constitutional. Opponents argue the ban violates the Establishment Clause, as well as the due process and equal protection clauses. The Establishment Clause argument is what Hawaii district judge Derrick Watson used as justification for blocking the ban. Watson wrote in his ruling that “because a reasonable, objective observer…would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose,” the plaintiffs were likely to succeed with the argument that the ban violated the First Amendment. The First Amendment states that “Congress shall make no law respecting an establishment of religion.” In its 1971 Lemon v. Kurtzman decision, the Supreme Court created a test for determining whether a law violates the Establishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” In his argument before Watson, the Hawaii Attorney General claimed the executive order makes Muslims “live in a country…where there is the perception that the Government has established a disfavored religion.” Watson seemed to agree, and quoted the Supreme Court decision Larson v. Valente: “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Due Process and Equal Protection The Fifth Amendment states that no one can be “deprived of life, liberty or property without due process of law.” One of the plaintiffs of the Hawaii court case is Ismail Elshikh, whose Syrian mother-in-law is no longer able to visit the US. The plaintiffs claimed by preventing the family members of Americans from entering the US, the order has deprived those Americans of their rights. This is also, according to the plaintiffs, a violation of the equal protection clause, which states that no one can be denied “the equal protection of the laws.” Discrimination based on religion or national origin are both illegal under the equal protection clause, and the plaintiffs argue the ban constitutes discrimination. A Muslim Ban? According to the Trump Administration, the ban does not violate the First Amendment because it is not a Muslim ban, as it only mentions the six countries that happen to have Muslim majorities and doesn’t specifically target any religious group. Watson wrote in his ruling that “the Executive Order does not facially discriminate for or against any particular religion.” The Trump Administration argued in court that the ban “applies to six countries that Congress and the prior Administration determined posed special risks of terrorism,” and that the order “applies to all individuals in those countries, regardless of their religion.” Furthermore, the Administration argued that since “the six countries…are home to less than 9% of the global Muslim population,” and the ban includes “every national of those countries, including millions of non-Muslim individuals,” it does not run counter to the Establishment Clause. Watson responded to these claims with a harsh tone: “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise[…] Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries.” Facial Neutrality The Trump Administration argues the ban is neutral in wording, and thus cannot be considered discriminatory. However, this is not necessarily enough to prove the ban is not discriminatory. Both the 9th Circuit Appeals Court that struck down the first travel ban and Watson cited in their rulings the 1993 Supreme Court case Church of the Lukumi Babalu Aye v. City of Hialeah. In it, a city enacted a law against animal sacrifice to prevent members of a particular religion from practicing it. The law was technically religiously neutral, as it banned all people from sacrificing animals, not just members of that religion, but it was clearly meant to target a specific religion whose members were the only ones performing animal sacrifice. The Supreme Court ruled against the law, stating that “official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” Trump’s Intent The main argument against the constitutionality of the order hinges on intent: namely, that Trump specifically chose those countries because he has a prejudice against Muslims. Evidence for this claim comes largely from anti-Muslim statements made during Trump’s presidential campaign, including speeches in which he argued for banning all Muslims from entering the US. In his ruling, Watson also cited statements made by Trump adviser Rudy Giuliani, who said in an interview that he and a team of lawyers had created the country-based travel ban after Trump asked him to come up with a legal form of the original Muslim ban. The intent behind laws can be used to determine whether they are discriminatory. Watson cited Village of Arlington Heights v. Metropolitan Housing Development Corp, a case regarding racially discriminatory zoning policy, in his ruling, stating that the Supreme Court had concluded “circumstantial evidence of intent, including…statements by decision-makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose.” In Village of Arlington Heights v. Metropolitan, the Supreme Court stated that in order to prove the zoning laws to be discriminatory, the plaintiffs had to first prove the laws hurt a protected class and that they were intended to discriminate against that class. In that case, the burden of proof would shift to the city, who had to prove they would have made the same law regardless of prejudicial intent. The Court ended up ruling that there was not enough evidence to prove the discriminatory purpose behind the zoning rules. Another case to consider is Palmer v. Thompson, which involved a city who had shut down swimming pools, allegedly in order to avoid integrating them. The Supreme Court ruled 5-4 in favor of the city, writing that it was dangerous to block laws based on the apparently discriminatory motives of the legislators. Since the pools were closed for both whites and blacks, and since there were legitimate reasons to close the pools, the closure was perfectly legal. Strict Scrutiny When considering discrimination cases, the Supreme Court uses three levels of scrutiny: rational basis, intermediate scrutiny, and strict scrutiny. If a law violates a fundamental right or involves a suspect class such as race or religion, strict scrutiny is applied, which assumes the unconstitutionality of the law and gives the government the burden of proving the law achieves a “compelling government interest” and that it is narrowly written to fit that purpose. The strict scrutiny test is often considered deadly, as it is very challenging for a law to pass. It is unclear, however, whether Trump’s travel ban should face the strict scrutiny test, as it does not explicitly discriminate against Muslims. In Washington v. Davis, the Supreme Court ruled that a law that is shown to have a discriminatory impact but no discriminatory intent is scrutinized under the rational basis test, which simply requires the law to be “rationally related” to a “legitimate” government interest. According to the Court, “a law, neutral on its face and serving ends otherwise within the power of government to pursue, is [not] invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.” The administration would likely argue that the order would pass a strict scrutiny test, as it was created to protect American national security and prevent terrorists from entering the country. Watson’s Decision Watson acknowledged the necessity of proving both discriminatory impact and intent, but characterized it as an easy proof: “The Government appropriately cautions that, in determining purpose, courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decision-makers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts.’ The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’” “The record before this Court is unique,” Watson wrote. “It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” The Future of the Ban In response to the Hawaii decision, Trump vowed to “fight this terrible ruling” and “take [the] case as far it needs to go in the Supreme Court.” The next step for the Hawaii case would be to appeal to the Ninth Circuit Court, the same court that blocked Trump’s first ban. From there the ban would likely be appealed to the Supreme Court. It’s likely Neil Gorsuch will be confirmed to the Court by that point, and it’s possible he could be a tiebreaking vote. Gorsuch has been deliberately unclear about how he would rule on the travel ban (or any case). When asked about a congressman who had declared Gorsuch to be the best hope for upholding the ban, Gorsuch stated such a claim was “silly,” and that the congressman “has no idea” how Gorsuch would rule. In response to a more direct question about the ban, Gorsuch said this: “We have a Constitution, and it does guarantee freedom to exercise. It also guarantees equal protection of the laws and a whole lot else besides, and the Supreme Court has held that due process rights extend even to undocumented persons in this country. I will apply the law faithfully and fearlessly and without regard to persons.” In the next few months, the travel ban will likely face a lengthy court battle. The initial purpose of the ban was to be a temporary measure until the government could establish better vetting procedures. Regardless of the decision, by the time the final ruling is handed down the court proceedings may have taken long enough for the effects of the order to have run out. 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