It's a Muslim ban, and it's unconstitutional
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Lawyer: Trump refugee ban is unconstitutional
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Lawyer: Trump refugee ban is unconstitutional 03:13
Story highlights
- An order from President Trump restricts the rights of people from 7 Muslim-majority countries in entering the United States
- Page Pate: This order, which unfairly targets a particular religious group -- namely Muslims -- violates the Constitution
Page Pate is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta, and the former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate. The opinions expressed in this commentary are his.
(CNN)Before he was elected President, Donald Trump made it clear he wanted to keep Muslims from entering the United States. In fact, he called for a "total and complete shutdown of Muslims entering the United States," a stance he slightly modified during the campaign.
Now that he is President, it looks like Trump is trying to accomplish the initial shutdown he called for on the campaign trail.
On
January 27, Trump signed an executive order that significantly
restricts the rights of people from seven Muslim-majority countries from
entering the United States. This order is a thinly veiled attempt to
discriminate against Muslims. Because the policy reflected in this order
targets a particular religious group, even though it doesn't cover
every country in which Muslims predominate, it is unconstitutional.
Page Pate
The executive order
It has been called a "travel ban," but the official title of the executive order signed by Trump is "Protecting the Nation from Foreign Terrorist Entry into the United States."
That
sounds like a good thing, right? Keeping America safe is one of the
most important priorities of our government. But the actual policy and
practice behind this order is inconsistent with its stated purpose.
Several
states, and many private individuals, have challenged the order on
various grounds. Their arguments are different, but almost all of them
involve the same core issues: Is this executive order an attempt to
discriminate against Muslims? And, if it is, can this possibly be legal?
Is this a ban on Muslims?
As the White House has pointed out numerous times in the past few days, there is nothing
in the order that specifically bans Muslims from entering the country.
It is true the order does not mention Muslims by name. It is also true
that most Muslims around the world are not directly affected by this
order. And the restrictions in this order seem to apply to anyone who is
a resident of the seven named countries, whether they are Muslim or
not.
If it was just about the text
of the order, it would be difficult to call it unconstitutional. But
it's not only what's in the order that's important; it's the intent of
the order and how it's being carried out.
Both
as a candidate and as President, Trump has said a lot about immigration
that shows his real intentions. As a candidate, Trump called for a "ban on Muslims." He repeated this idea often, and in a slightly different way several times during the campaign.
After the election, Rudy Giuliani, who is close to Trump and was a strong supporter of his campaign, also expressed Trump's desire
to ban Muslims, but to make it appear legal. And when the executive
order was signed, there was a focus not just on terrorists, but "Islamic" terrorists. Perhaps even more revealing, Trump made clear shortly after signing the order that he was going to "help" Christians by giving them preference in obtaining permission to enter the country.
Based
on his own words, and the initial actions of the executive branch in
applying this order to legal permanent residents, it's clear what Trump
wants to do. He wants to stop Muslims from coming into the country. If
that's his true intent, then this order is effectively a "Muslim ban."
Is a ban on Muslims legal?
That
brings us to the second question: Can Trump actually ban Muslims from
coming into the United States? That may seem like a simple question, but
it's really not. There is no clear ruling from any court that such a
ban would be legal or illegal. The issue boils down to a question of
power: How far can a President go in limiting who is allowed to enter
the United States?
There is no
dispute the President has a tremendous amount of discretion in
determining who can enter the United States. The President is given this
authority through the immigration laws passed by Congress and the
President's own constitutional power to protect national security.
Because
the President has this power, Trump's lawyers have argued the President
has every right, indeed a responsibility, to issue an order like this
to protect the country from terrorists.
If
this order just protected us from "terrorists," then it would be
perfectly legal. But the order identifies "terrorists" as people who are
residents of these seven countries. Putting aside the question of
whether people from these countries are all terrorists, or even mostly
terrorists, singling out this group of countries suggests the order is
focused on more than just national security, and that's where it runs
into trouble.
The Immigration and Nationality Act
There
are a variety of different legal challenges to this order. Some of them
rely on the Constitution; some rely on laws passed by Congress. One
argument is that the order violates the Immigration and Nationality Act,
or INA, a law passed by Congress to deal with immigration into the
United States.
Refugees living in US send message to Trump 02:21
One part of the INA prohibits discrimination
based on a person's race, sex, nationality, place of birth or place of
residence. This provision seems to clearly prevent the type of
discrimination called for by the express terms of the order. But there
is another provision
in the INA that gives the President the power to deny any person entry
into the country if the President determines the person's presence
would be "detrimental to the interests of the United States." This
provision appears to allow the President to discriminate on any basis,
as long as the group being discriminated against presents a danger to
the country.
The constitutional arguments
There
are three basic constitutional arguments against the executive order:
it violates the due process rights of noncitizens, it denies equal
protection to noncitizens who are Muslim and it promotes one religion
over another.
The due process argument is based on the Fifth Amendment
to the United States Constitution. Among other things, this amendment
protects people from being deprived of their rights without "due process
of law." The states' argument here is that taking legal status away
from people who have already been approved for entry into the country
without giving them a fair hearing is a violation of their rights.
Of
course, this argument only works for people who have the right to be
here. For people who are not legally in this country, the argument is a
little different. They may be entitled to due process to the extent they
have a chance to be considered for entry into the United States as a
refugee or asylum-seeker. That's a process created by Congress, and one
that shouldn't be arbitrarily taken away.
But
this issue is not just about the rights of immigrants and refugees.
There is also a very compelling argument that this order violates the
constitutional guarantees of equal protection and religious freedom. And
those rights affect us all, citizens and noncitizens.
In
my opinion, a "Muslim ban" would be unconstitutional in two ways.
First, it would be a violation of the Fifth Amendment guarantee of equal
protection in that it treats a specific class of people (Muslims from
the seven countries) differently than other noncitizens. Second, the
order would violate the First Amendment's Establishment Clause by giving
preference to one religion over another.
Like
due process, the concept of equal protection is based on the Fifth
Amendment. Equal protection prevents the government from unfairly
discriminating against any person based on his or her race, national
origin or religion. These protections arguably apply to people who are
legally here, and to people who show up at the border or an airport
trying to gain entry into the United States.
Trump immigration ban sparks chaos, confusion 03:41
To
be clear, the doctrine of equal protection does not prevent all
discrimination. There may be certain situations where the only way to
accomplish a legitimate and necessary governmental function is to
discriminate in some way. But if that happens, the government had better
be able to show a really good reason for it and provide strong evidence
that there is no other viable alternative. I don't think they have done
that here.
The other reason I
think this order is unconstitutional is because it is likely to violate
the Establishment Clause of the First Amendment if it is enforced in the
way Trump and his surrogates have promised.
The
"Establishment Clause" is found in the First Amendment: "Congress shall
make no law respecting an establishment of religion." This clause has
been interpreted to cover laws passed by Congress and any official
action by the government, and that would include executive orders.
"Establishment" doesn't just mean the creation of an official state
religion. It also means the government can't give preference (in any
law, regulation or policy) to one religion over another.
In
this case, the Establishment Clause argument is based on President
Trump's comments about targeting Muslims and giving preference to
Christians. The argument also draws support from the language in the
executive order, specifically Section 5(b), which gives preference to
religious minorities in refugee programs.
Do states have a right to challenge this order?
The
courts may never reach the constitutional issues if they decide these
states do not have "standing" to sue the federal government over this
order. To be able to file a lawsuit in court, you must have legal
standing. Having "standing" basically means having the right to sue. A
state can't simply sue the federal government because certain state
officials disagree with a federal law or policy. A state has to point to
a specific harm or injury the law or policy is causing that state.
In
this case, the states argue that they have standing because immigration
affects their economy in various ways. They also argue the order
affects the operation and reputation of state universities and other
institutions.
In response, Trump's
lawyers argue these states have no legal standing because the problems
mentioned by the states are too speculative and, now that the White
House has "clarified"
that the order shouldn't apply to legal permanent residents, the states
are not really suffering any recognizable financial or reputational
harm.
I think this is a close call. In the Deferred Action for Parents of Americans, or DAPA, case,
Texas, joined by several other states, sued the government over a
federal order focused on immigration. Texas argued that implementation
of this order would cost the state too much money. Texas won at the
district and appellate level, though the Supreme Court never reached the
merits of this argument.
In DAPA,
Texas had a better standing argument than Washington and Minnesota do
here. The economic harms were more specific and concrete. And, perhaps
more importantly, if Washington and Minnesota can't include legal
residents in their claims because the order doesn't apply to them, their
standing argument is even weaker.
But
judges don't like to leave major constitutional questions unanswered,
and the only other way to challenge this order in court would be by
individual lawsuits filed by the people who are directly affected by the
order. That could quickly result in a patchwork of different cases and
different rulings, and create even more confusion over the legality of
this order.
Debate is a good thing
This
debate, as messy as it may be, is a good thing for the country. Unless
Trump administration officials decide to start ignoring court orders
(which they have fortunately agreed to follow for now), there will be no
constitutional crisis.
As
for Trump himself, he seems content just to use a series of tweets to
insult the judge who disagreed with him. While that's certainly not very
presidential, it really doesn't create any legal crisis. The judges
will just ignore him, like many of the rest of us try to do.
Whatever
the final decision, this important discussion in our courts and our
communities will show the strength of the Constitution and the
separation of powers. The fact that a single federal district judge can
stop the actions of the President is a reflection of the principle that
we are a nation built on the rule of law, not on the whims of a
power-hungry man. We will soon see if that principle holds true.
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