The Supreme Court’s First Great Trump Test: the Muslim Ban

Eric Thayer/Reuters

A protest against Trump’s second Muslim travel ban order in Washington, D.C., March 7, 2017

Ever since a “so-called judge” in Washington State issued a nationwide injunction against President Donald Trump’s ban on entry by foreign nationals from seven predominantly Muslim countries, the courts have played a critical part in checking the president’s constitutional excesses. The Supreme Court, however, has yet to assess the travel ban. That will change this week, when the court hears arguments in a challenge to the third and latest version of the ban. (The ACLU, where I serve as National Legal Director, has been counsel in successful challenges to all three versions of the ban, including one now pending before the Supreme Court.) The case most directly implicates the rights of Muslims, here and abroad, singled out for disfavored treatment by a president who promised to do just that as a candidate. But because the administration has argued that the court must blindly defer to the president, the dispute equally concerns the very role of the court in the separation of powers.

The Supreme Court has sometimes deferred to the political branches on matters of immigration and national security policy, but never on religious bias. And the constitutional case against the travel ban is overwhelmingly strong. Just as the Establishment Clause of the First Amendment prohibits the government from making any law “respecting an establishment of religion,” it also forbids the government from singling out for disfavor or condemnation any particular religion. This prohibition is absolute; never in the court’s history has it found an example of justifiable religious condemnation. Yet the travel ban is, in Trump’s own words, a ban on Muslims.

As a candidate, Trump called for “a total and complete shutdown of Muslims entering the United States,” because, he argued, “Islam hates us.” He also explained that he would do so by using “territory” as a proxy for religion. One week after taking office, he delivered on his promise, banning the entry of immigrants from seven nations, all with populations that are over 90 percent Muslim: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The executive order applied even to individuals who had been vetted, approved for immigration to the United States, and granted visas. In case there was any doubt about the order’s purpose, Trump appeared on a national Christian broadcasting station the same day to explain that the order was designed to favor Christian over Muslim refugees. When several courts declared that order unconstitutional, he issued a new one, this time barring the entry of immigrants from six of the original seven predominantly Muslim nations. (Iraq was removed from the list, and people who had previously been granted visas were exempted, but otherwise the ban was virtually the same.) While Trump dismissively called the new order “watered down” and “politically correct,” administration officials claimed it furthered the same purpose as the first one.

After federal appeals courts in California and Virginia struck down the second travel ban, finding it both unconstitutional and in violation of the Immigration and Nationality Act, Trump initially appealed to the Supreme Court, but then issued yet a third version of the ban shortly before the court was scheduled to hear argument. In light of this development, the court sent the cases back to the lower courts to consider the legality of the third and latest executive order. This version was ostensibly predicated on a study that Trump had ordered the Department of Homeland Security to conduct, examining how visas are granted to foreign nationals of every country. The DHS review committee was headed by Frank Wuco, a White House senior adviser who had previously stated that to “stop the visa application process into this country from Muslim nations in a blanket type of policy” was one of several “great ideas.”

The review committee ended up recommending a ban virtually identical to the first two. The current version denied entry to over 150 million people from six predominantly Muslim countries. (Possibly in hopes of making its actions more defensible, the administration recently removed one of the Muslim countries, Chad, from the list.) The order also bars entry to North Koreans and certain Venezuelan government officials, but since almost none of them come to the United States anyway, virtually everyone affected remains Muslim. Had this ban been in effect in 2016, court filings have shown that it would have denied immigrant visas to some 12,998 Yemenis, 7,727 Iranians, nine North Koreans, and zero Venezuelans.

The lower courts have all found this third version invalid. Some judges have ruled that the ban exceeds Trump’s authority under the immigration statutes, in part because Congress prohibited denying immigrant visas on the basis of nationality, and the order does exactly that. Others have concluded that this ban, like its predecessors, violates the Establishment Clause. In essence, these judges have ruled, the president has erected a sign at the border reading “Muslims Keep Out,” and that cannot be squared with the government’s obligation to maintain strict neutrality regarding religion. No state or federal government official can target a particular religion for condemnation. Indeed, this Establishment Clause prohibition is so widely accepted that such cases rarely arise. When they do, as when the City of Hialeah, Florida, enacted an ordinance designed to prohibit only the religious practices of a Santeria sect, the courts have been firm in declaring the conduct unconstitutional.


But the Trump administration argues that the fact that the president is exercising immigration power in the interest of national security makes all the difference, and essentially requires the court to uphold what in any other setting it would roundly reject. The government offers three principal arguments in defense of the ban, all calling for extraordinary judicial deference. It first maintains that because the order concerns the discretionary power of the executive branch to issue or deny visas, the court cannot review it at all. But the Supreme Court has reviewed visa denials before when, as here, they affect the right of people in the US to be united with their family or friends: once, on behalf of economists who had invited a Marxist economist, Ernest Mandel, to a conference; and again, on behalf of a US citizen whose husband, a citizen of Afghanistan, was denied a visa on national security grounds. While the court ultimately upheld both visa denials, it did not hold, as the government now contends, that such decisions are entirely unreviewable.

The administration also asserts that even if the decision is technically reviewable, the court must disregard all of Trump’s admissions of unconstitutional purpose. It says the court should limit its review to the four corners of the order itself, and ignore the fact that Trump has repeatedly admitted that his intent is to target Muslims. But in Establishment Clause cases, the court has insisted that judges cannot “turn a blind eye to the context in which [the] policy arose.” The governing constitutional inquiry requires the court to assess whether a reasonable observer, aware of all the publicly available facts, would understand the government’s action as targeting a particular religion. Just as ordinary Muslims cannot ignore what the president has said, neither can a court. And in the immigration setting, the court has stated that it can look behind the formal visa denial if the challenger makes an evidentiary showing that the government’s asserted rationale is not “bona fide.” That showing is usually difficult to make, but—because of Trump’s repeated public boasts—it is easily made here.

Finally, the administration argues that even if the court considers Trump’s statements, the DHS review of the visa-vetting process that took place between the second and third versions of the ban effectively laundered any impermissible intent, because it involved many government officials other than the president. But President Trump made clear before the third ban was announced that he intended to reinstate the ban on entry by Muslims. The DHS reviewers, headed by an outspoken supporter of a Muslim ban, knew what their boss wanted. And the report produced by the visa-vetting review process itself remains undisclosed, so there is no way of knowing whether it has any independent legitimacy. It is not a coincidence that the review ultimately led to a ban on 150 million Muslims—and virtually no one else.

In short, the administration maintains that because the defendant is the president, and because the president has authority over immigration and national security, the courts should simply look the other way. But the administration has offered no good reason why either border control or national security should afford the president the authority to discriminate against a specific religion.

The court is expected to hand down its ruling by the end of June. But while the justices deliberate, they should reflect that, once before, the Supreme Court was asked to defer blindly, in the name of national security, to executive actions that were plainly unconstitutional. President Franklin Delano Roosevelt’s order to intern Japanese-American citizens and Japanese nationals during World War II on the basis of their ethnicity and race was as clear a violation of equal protection as the court had ever confronted. Yet, in Korematsu v. United States (1944), the court deferred to the president’s claim that because there was no way to identify the saboteurs and spies among the Japanese population, they all needed to be locked up. Today, that decision is seen as one of the most shameful in the Supreme Court’s history. The court would do well to learn from its past mistake.


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