POLITICS
03/07/2017 09:22 pm ET Updated Mar 08, 2017

Donald Trump's New Travel Ban Targeting Muslims May Still Be Unconstitutional

Government lawyers will have a hard time arguing that the restrictions don't amount to discrimination against Muslims.

Bob Ferguson, the Washington state attorney general, is claiming victory for President Donald Trump’s scaled-back travel ban on certain Muslim-majority countries, unveiled Wednesday after more than a month of delays and false starts.

And Ferguson may be justified in doing so: He was behind an important legal victory last month against the original executive order, which fueled chaos at airports, protests and dozens of lawsuits.

“Bottom line is, the president has capitulated on numerous key provisions that we contested in court about a month ago,” Ferguson, a Democrat, told reporters at a news conference Wednesday, just hours after Trump signed the revamped executive order, which revoked the old one and has far fewer teeth. 

That seems to be the consensus view ― that the new restrictions are only a shadow of the original executive order, and that state attorneys general, civil rights lawyers and other challengers will now have to think longer and harder on how to successfully challenge what’s left of it in the courts.

Lee Gelernt, one of the American Civil Liberties Union lawyers behind the first challenge to the first executive order in New York, said he and the rest of the legal team are still figuring out how to proceed and have “nothing to report on the revised ban.”

Perhaps because Trump’s watered-down order opens up a new legal front, the Department of Justice surprised Ferguson on Tuesday when it sought dismissal of its own appeal contesting the nationwide freeze on the ban. In a statement, the attorney general claimed victory again, calling the original travel ban “unconstitutional.”

Indeed, the new order appears to fix something that the appeals court that ruled for Ferguson identified was a problem with the first travel ban: the lack of due process for affected travelers who had valid authorization to come to the United States but were nonetheless barred from boarding planes, detained at airports, or even forced to relinquish their authorization to be here. They were all taken by surprise by Trump’s ban, without a meaningful chance to defend themselves.

As drafted, the new ban actually gives some advance warning: It will go into effect on March 16 and only applies to nationals of six countries who didn’t have privileges to travel to the U.S. in the first place. Everyone else ― legal permanent residents, visa holders and refugees approved for travel to the U.S. ― won’t be affected.

These revisions will “help avoid the grotesque spectacle” travelers experienced at airports upon the rollout of the first ban in late January, said Jonathan Taylor, a public-interest lawyer who has been closely following the court battles over Trump’s executive order on immigration.

If that’s enough to cure the due process problems, some legal observers suggest that Trump’s order may be safe in the courts, under longstanding precedent that recognizes the president has broad authority to set immigration policy. But for opponents of the ban, that means their legal focus is likely to shift to their bottom-line claim that the travel ban was meant to discriminate against Muslims.

“Two courts appear to believe that Trump was motivated by animus toward Muslims when he issued the first travel ban,” wrote University of Chicago law professor Eric Posner, who has written extensively on the limits of executive power. “Nothing in the new executive order will make them think differently.”

“Two courts appear to believe that Trump was motivated by animus toward Muslims when he issued the first travel ban. Eric Posner, University of Chicago law professor

One of those courts was the U.S. Court of Appeals for the 9th Circuit, where the states of Washington and Minnesota succeeded at keeping the original travel ban on ice. There, the court observed that the states’ lawsuit raised “significant constitutional questions” about religious discrimination against Muslims, and that comments by Trump and his associates about instituting a so-called “Muslim ban” could call the order’s legality into question at a later stage of the litigation.

The other court, in Virginia, took that extra step and said the state was likely to prevail on its claim that Trump’s travel ban likely amounted to the government disfavoring the Muslims as a whole ― which itself can violate their constitutional right not to be discriminated against on the basis of religion.

“As a matter of law, the threat of an Establishment Clause violation in and of itself constitutes irreparable harm,” wrote U.S. District Judge Leonie Brinkema in an opinion that also said Trump’s first travel ban was largely motivated by animus toward Islam.

Citing Supreme Court precedent, the judge noted that “the specific sequence of events leading to” the travel ban’s adoption is entirely relevant to analyzing the real purpose behind it. Trump was “not made brand new simply by taking the oath of office,” the judge suggested.

If that’s the case, not even his claims of national security or the considered judgment of his Department of Homeland Security may get taken seriously, even though the executive’s enforcement of immigration law tends to get an enormous deference from judges.

“The fact that the government has repackaged the ban does not alter its intent or effect ― to target members of a particular religion,” David Cole, the ACLU’s national legal director, wrote in his own assessment of the overhauled order. “And the purported national security justifications for doing so have been refuted by none other than the DHS itself.”

Since the well may already be poisoned with Trump’s repeated calls for a “Muslim ban,” it is possible courts will go ahead and just second-guess Monday’s revamped executive order anew.

The Constitution “recognizes that when the government endorses or disfavors a particular religious group, that this works harm to people who are members of the disfavored religion ― even if they’re not directly affected by the law or the executive order,” Taylor said. “It sends the message that they’re not full participants in our democracy.”

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