We'll See You in Court, 2.0: Once a Muslim Ban, Still a Muslim Ban

If a Muslim Ban is cleaned up to exclude Iraq, exempt lawful permanent residents and other current visa holders, is it still a Muslim ban? That's the question presented by President Donald Trump's decision to replace his original executive order, enjoined by the courts, with a new one. The administration's decision to abandon the old order is wise; every judge but one who had reviewed it found it raised grave constitutional concerns. The new order will be less catastrophic in its roll-out than the first, both because it exempts those who already have visas and because it will not go into effect until March 16. But it's still religious discrimination in the pre-textual guise of national security. And it's still unconstitutional.

As I've written before, Trump has repeatedly made crystal clear his intent to ban Muslims from entering the United States. As a candidate, he stated several times that he intended, if elected, to ban Muslim immigrants from entering the United States. He has never repudiated that commitment. When confronted with the fact that his proposal would violate the Constitution, Trump said on NBC's Meet the Press in July, that he would use territory as a proxy for religion. And, when asked after his election victory whether he still intended to ban Muslim immigrants from the United States, President-elect Trump confirmed that was still his plan. Two days after the original Executive Order was issued, former NYC Mayor Rudy Giuliani, an advisor to President Trump, stated that then-candidate Trump had asked him for help in "legally" creating a "Muslim ban"; and that, in response, Mr. Giuliani and others decided to use territory as a proxy; and that this idea is reflected in the signed Order. There is overwhelming evidence that the most recent Executive Order was likewise intended to discriminate against Muslims.

"The fact that the government has repackaged the ban does not alter its intent or effect - to target members of a particular religion. And the purported national security justifications for doing so have been refuted by none other than the DHS itself."First, it continues to target only countries that are predominantly Muslim. All of the six countries targeted by the immigration ban are over 90 percent Muslim. Second, it does so without a valid security justification. Trump's own Department of Homeland Security recently concluded that an individual's "country of citizenship is unlikely to be a reliable indicator of potential terrorist activity" and that "few of the impacted countries [under the EO] have terrorist groups that threaten the West." Third, on February 21, White House advisor Stephen Miller explained that any changes to the first executive order would be "mostly minor, technical differences....Fundamentally, you are still going to have the same, basic policy outcome for the country." Exempting lawful permanent residents, and others with visas, does nothing to alter the purpose or design of disfavoring a specific religion.

So the new executive order is, like the old executive order, intended to target Muslims. That intent violates the first principle of the Establishment Clause, which forbids the government from singling out particular religions for favor or disfavor (Larson v. Valente, 456 U.S. 228, 247 (1982)). The fact that the government has repackaged the ban does not alter its intent or effect - to target members of a particular religion. And the purported national security justifications for doing so have been refuted by none other than the DHS itself.

The executive order has other flaws as well. For example, it maintains the first executive order's unilateral reduction to the annual level of refugee admissions, cutting it from 110,000 to 50,000. That reduction, imposed unilaterally by the president without consultation with Congress, is unauthorized. The immigration statute does not allow the president to order a mid-year reduction in the level of refugee admissions--an action no president has ever done before--much less to do so without consulting Congress. To the contrary, it states expressly that the "number of refugees who may be admitted" in a particular fiscal year "shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest." 8 U.S.C. SS 1157(a)(2). The Republicans objected strenuously to President Barack Obama's allegedly unilateral decision not to prioritize the deportation of certain undocumented people here. But Obama was exercising prosecutorial discretion expressly granted to him. In unilaterally reducing the annual level of refugees admitted to the US, at a time of virtually unprecedented world need for refugee placements, Trump is not only acting unilaterally, but in violation of the statute that establishes the process for setting the cap in the first place.

President Trump, we'll see you in court.