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.