Monday, March 06, 2017

Muslim Ban 2.0 is Kinder and Gentler, But Still Unconstitutional

by Michael Dorf

The Trump administration's revised travel ban was undoubtedly designed to better withstand legal challenge than the earlier version. Nonetheless, it is unconstitutional for the same reason that its predecessor -- Executive Order 13769 -- was unconstitutional: It intentionally discriminates against Muslims.

To be sure, the new EO says that even EO 13769 "was not motivated by animus toward any religion," but the fact that a document signed by Donald Trump says something is, not to put too fine a point on it, not even prima facie evidence of the truth of that something.

Nothing in the new EO--which has a clear disparate impact on Muslims and arises out of the same history of animus as its predecessor--indicates that it was the product of a wholly new security-focused process that just happened to single out (now six, rather than seven) overwhelmingly Muslim countries. As I suggested it would be, the new travel order is tainted by Trump's and his allies' anti-Muslim bias. Period.


Shag from Brookline said...

Repealing anf replacing EO 13769 with an Old MacDonald Had A Farm E[I-E-I]O with virtually the same animus, "With a Muslim here, a Muslim there ...."

John Smith said...

As I asked on this blog on February 24: Are aliens (from the 6 super-majority Muslim countries) who have never set foot in the US, and who have never had any contact with a US citizen or institution, afforded any protection (under any statute or the Constitution) from blatant religious discrimination being used as the basis for their (temporary) exclusion from the US?

What Court cases (or cases cited by Judge Brinkema) would provide the most persuasive support that this Muslim Ban violates the Constitution?

It seems to me (and to my chagrin) that the challengers will have a huge uphill in overturning this core provision in Muslim Ban 2.0. I am hoping to be convinced otherwise.

Shag from Brookline said...

Eric Posner at his Blog - - has an interesting 3/5/17 post that John might be interested in reading.

Michael C. Dorf said...

In response to John Smith, consider also what Adam Cox wrote a while back:

Shag from Brookline said...

On the question of animus regarding the new travel ban EO, I understand that it was not rolled out with President Trump signing the EO on cameraa and informing the public how wonderful it is. Rather, Sec'y. of State Tillerson came out of hibernation with commentary, followed by AG Beauregard Sessions and then Sec'y. Homeland Security Kelly. Their statements in support of the EO may suggest evidentiary support to back up the EO. It's possible Trump did not do the honors because in his own mind he "lost" the prior EO Travel ban and his minions might have thought he might make some commentary on the actions of several courts that could be construed as animus. Or perhaps the White House ran out of leather EO binders. Maybe like love, EOs are lovelier the second time around.

Joe said...

The second paragraph is both a sick joke and valid.

John Smith's criteria are rather strict. For instance, past judicial opinions regarding the first executive order repeatedly pointed to some "contact" with state institutions and so forth. Also, I take it there are certain statutes and treaty obligations for that matter that cover those who have no such contacts and never step foot on U.S. soil which would be relevant here such as those involving refugees.

Finally, if this is truly a "Muslim ban," as Michael Dorf and others note (see the Verdict column linked as well), the First Amendment sets up a structural ban that is not just about individual persons being harmed. The people who had standing the last time around are likely to have some standing now and make that claim.

John Smith said...

Thank you, Prof. Dorf and Shag for the links. ( I actually read Adam Cox's thoughtful comments when he posted them.)

I still believe (and hope you, the ACLU, the Washington Attorney General, etc. can prove me wrong) that the challengers will face a significant obstacle in getting relief from a court.

Perhaps a claim can be made whereby a Muslim citizen of the US (or a Muslim organization in the US) can assert that the new EO detrimentally impacts their ability to freely, and on equal footing with Christians and Jews, etc., practice their religion in the US because, although it was supposedly intended only to target alien Muslims overseas, its practical impact is to render Muslims lawfully in the US second-class citizens in terms of practicing their religion free from any type of discrimination. In effect, what the EO does (when one looks at its sordid history) is tell Muslims lawfully in the US that there religion is tainted, is looked down upon, and is not worthy of the same constitutional protection as other religions.

Steve Davis said...

I can't help but think that your taint argument goes too far, but I find it difficult to come up with principles for determining what must happen to overcome the taint a situation like this. Can you think of a hypothetical in which the Trump admin could issue an EO that targeted specific Muslim-majority countries, which would pass muster, notwithstanding all the incriminating past statements? It seems to me that there should, at least theoretically, be such a hypothetical. What if there really were solid evidentiary grounds for believing that letting people in from certain countries, which just happen to be Muslim-majority, was very risky, perhaps because of insufficient security controls in those countries, or the amount of terrorism in those countries? Supposing those grounds were solid, wouldn't it be odd to say that no EO ever could issue because of the taint of past comments? That seems wrong to me. I'm not suggesting solid grounds exist here, but I can imagine situations where they might, and it seems to me the taint argument would go too far in such cases.

Joe said...

He said "Nothing in the new EO--which has a clear disparate impact on Muslims and arises out of the same history of animus as its predecessor--indicates" it does. This leaves open "something" in theory. As noted in his past remarks (linked), past bad acts would make it harder to do that than someone starting on a clean slate.

But, that still doesn't mean it is impossible.

Shag from Brookline said...

Hypothetically, Chicken Little at some point could be right that "The sky is falling, .... " But Chicken Little - or President Trump - is not a credible messenger.