Donald Trump’s New Immigration Ban Is Still Unconstitutional, Barring Muslims From Six Countries Despite No Evidence That They Pose a Security Threat

"We are all immigrants": a protestor in Boston's Copley Square on January 29, 2017, after Donald Trump issued his first Muslim ban (Photo: NBC Boston).Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

Donald Trump’s alarming presidency began with a blizzard of disgraceful executive orders, of which the most prominent was the immigration ban preventing visitors from seven mainly Muslim countries — Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen — from coming to the US for a 90-day period. Refugees from these countries were banned for 120 days, and refugees from Syria were banned permanently. The ban was so chaotic that legal US residents — who had left the US for a vacation, for example, or on business —  were also banned, as were dual nationals, and, of course, it was unconstitutional because it was effectively a ban on Muslims, and, as David Cole, National Legal Director of the ACLU and professor at Georgetown University Law Center, has explained, as such it “violates the first principle of the Establishment Clause, which forbids the government from singling out particular religions for favor or disfavor (Larson v. Valente, 456 U.S. 228, 247 (1982)).”

Trump’s original executive order, which I wrote about in my article Trump’s Dystopian America: The Unforgivable First Ten Days, was almost immediately subjected to successful legal challenges, as I explained in my articles, Heroes of the Resistance: Judge James Robart, Who Has Suspended Donald Trump’s Unacceptable Immigration Ban, and Washington State AG Bob Ferguson (on February 5), As 9th Circuit Judges Uphold Stay on Donald Trump’s Disgraceful Immigration Ban, 29 Experts from The Constitution Project Condemn Spate of Executive Orders (on February 10) and Court Rules That Donald Trump’s Disgraceful Immigration Ban Discriminates Against Muslims (on February 14).

With some thought having gone into this revised executive order, some of the worst aspects of the original have been removed — an exception has been made for legal residents and dual nationals, and the ban on Iraq has also been lifted, because, as Aryeh Neier, president of the Open Society Institute from 1993-2012 and a founder of Human Rights Watch, explained in a Guardian column, “Apparently, officials of the administration persuaded the president that it is not a good idea to stigmatize Iraqis as terrorists at a time when Iraqi forces, with American assistance, are fighting to expel the Islamic State from Mosul.” Neier added, “Also, some of the most damaging publicity resulting from the previous version of the order involved the exclusion of Iraqis. Those detained by federal agents as they tried to enter the United States included Iraqis who had assisted US forces when they occupied the country after the 2003 invasion by acting as translators.” Read the rest of this entry »

As 9th Circuit Judges Uphold Stay on Donald Trump’s Disgraceful Immigration Ban, 29 Experts from The Constitution Project Condemn Spate of Executive Orders

Protestors against Donald Trump's immigration ban at Dallas/Fort Worth International Airport in Dallas, Jan. 28, 2017 (Photo: Reuters).Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the first two months of the Trump administration.

 

There was great news yesterday from the Ninth Circuit Court of Appeals in California, as a panel of three judges unanimously upheld the stay on President Trump’s Executive Order barring entry to the US from seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) whose populations are predominantly Muslim. The stay was issued five days ago by District Judge James Robart, a senior judge in the United States District Court for the Western District of Washington, and he is one of several high-level heroes resisting Trump’s racist contempt for the constitution, previously discussed in my articles, Trump’s Dystopian America: The Unforgivable First Ten Days and Disgraceful: Trump Sacks Acting US Attorney General Sally Yates, Who Refused to Support His Vile Immigration Ban.

As the Guardian reported, the court found that “the government has not shown a stay is necessary to avoid irreparable injury.” In particular, its ruling noted that “the government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all.”

In a press release, the Constitution Project (a Washington-Based non-profit organization whose goal is to build bipartisan consensus on significant constitutional and legal questions) noted that the court rejected the Trump administration’s argument that “the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections,” and stated, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” The Constitution Project also noted that the court added that Fifth Amendment protection against “deprivation of life, liberty, or property, without due process of law” applies to everyone within the United States, not just citizens. Read the rest of this entry »

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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