Guest view: Muslim travel ban 2.0 is just as unconstitutional as 1.0
“See you in court,” President Donald Trump tweeted in February after a federal court blocked his first attempt at a Muslim travel ban nationwide. True to Trump’s tweet, his administration since then has argued for the policy in courtrooms across the country. Yet even after the administration tried to revise its original ban, courts have said “No.”
The latest example of this came from the U.S. Court of Appeals for the 4th Circuit, based in Richmond, in a powerful ruling handed down on Thursday. In it, the court reinforced not only the view of Trump’s onetime Acting Attorney General Sally Yates, whom he fired for refusing to defend the ban, but also the rulings of courts from Hawaii to Virginia: The ban discriminates based on religion, violating the First Amendment of our Constitution.
As Judge James Wynn said in a concurring opinion to the 4th Circuit ruling, “Invidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination. … Laid bare, this [travel ban] is no more than what the President promised before and after his election: naked, invidious discrimination against Muslims.”
The Constitution’s promise of religious freedom is neither an accident of history nor a footnote. Our nation’s Founders were well aware that the country was settled by refugees of religious persecution in Europe. That’s why the drafters of the Constitution prominently guaranteed the free exercise of religion and the structural prohibition on establishment of religion. The First Amendment helps ensure, as James Madison said, that “[t]he Religion … of every man must be left to the conviction and conscience of every man.”
Trump’s anti-Muslim travel ban defies this founding wisdom. Not only did he vow to halt the immigration of Muslims to the U.S. during his presidential campaign — a fact that the 4th Circuit recognized — the role of onetime Trump adviser and former New York City Mayor Rudy Giuliani helpfully underscored this fact. As he told Fox News in January, Trump sought Giuliani’s counsel on how to make banning Muslims “legal.” Giuliani declared, “When [Trump] first announced it, he said ‘Muslim ban.’ He called me up, he said … ‘show me the right way to do it legally.’ And what we did was we focused on, instead of religion, danger, areas of the world that create danger for us … perfectly legal, perfectly sensible.”
In fact, courts have now made it clear that such a ban is perfectly unconstitutional.
Meanwhile, the administration’s attempt to fall back on the Immigration and Nationality Act, passed by Congress in 1965, as a defense of the ban is equally flawed. The act affords the president wide discretion to deny entry to any immigrant or non-immigrant. The law, however, does not confer the power to issue a blanket exclusion against millions of people based on where they are from. In fact, the law categorically forbids discrimination based on “nationality, place of birth, or place of residence.” While the 4th Circuit’s ruling didn’t reach this issue, one judge concurred that — in addition to violating the Constitution — Trump’s order also likely violates the INA.
Finally, practical arguments also weigh against the ban. No American has been killed in a terrorist attack in decades, if ever, by immigrants from the six Muslim countries named in the ban. Attorney General Jeff Sessions claimed that “more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the” FBI. According to one review, however, “[a]t least 70 percent of the 300 people under review are from countries not covered by the travel ban.” And earlier this year, the Department of Homeland Security said in a draft intelligence report that citizenship is an “unlikely indicator” of terrorism threats to the U.S. The ban draws little distinction between desperate refugees fleeing the ravages of war and terrorism, and those who inflict the ravages of war and terrorism.
The bottom line, as court after court has recognized, is that religious intolerance masquerading as security is offensive to the principles on which the Founders established this nation, and toward which we as a country must constantly strive. Sessions has promised to appeal to the U.S. Supreme Court the administration’s defeat in the 4th Circuit, but it is past time for Trump to stop the masquerade. He should jettison his unconstitutional Muslim travel ban.
Elizabeth Wydra is president of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text and history. Follow her on Twitter: @ElizabethWydra.