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

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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.”

In addition, as the Guardian described it, “language that granted priority to religious minorities for refugee resettlement, which had been viewed as targeting Muslims,” has also been removed. The Guardian added that the new executive order states that Trump’s original order “was not motivated by animus toward any religion”, but noted that this was a remark that was “rejected instantly by refugee advocates and civil liberty groups, who said they planned to challenge the second order on similar grounds.”

A final change is a delay in the implementation of the executive order, which does not come into effect until March 16. As the Guardian noted, “The first order was implemented immediately and prompted confusion and chaos at US airports and consulates abroad.”

Nevertheless, as David Cole noted for Just Security, “it’s still religious discrimination in the pre-textual guise of national security. And it’s still unconstitutional.” Cole began by running through Trump’s discrimination against Muslims, noting how, on the campaign trail, “he stated several times that he intended, if elected, to ban Muslim immigrants from entering the United States,” and also noting that he “has never repudiated that commitment.”

“When confronted with the fact that his proposal would violate the Constitution,” Cole added, “Trump said on NBC’s Meet the Press in July, that he would use territory as a proxy for religion,” and “when asked after his election victory whether he still intended to ban Muslim immigrants from the United States, [he] confirmed that was still his plan.” Cole also pointed out how, “Two days after the original Executive Order was issued, former NYC Mayor Rudy Giuliani, an advisor to President Trump, stated that then-candidate Trump had asked him for help in ‘legally’ creating a ‘Muslim ban’; and that, in response, Mr. Giuliani and others decided to use territory as a proxy; and that this idea is reflected in the signed Order.”

Cole proceeded to point out that there is “overwhelming evidence that the most recent Executive Order was likewise intended to discriminate against Muslims.” As he put it, not only does it continue to “target only countries that are predominantly Muslim,” but “it does so without a valid security justification.”

He added, definitively, that “Trump’s own Department of Homeland Security recently concluded that an individual’s ‘country of citizenship is unlikely to be a reliable indicator of potential terrorist activity’ and that ‘few of the impacted countries [under the EO] have terrorist groups that threaten the West.’ he also explained how, on February 21, White House advisor Stephen Miller “explained that any changes to the first executive order would be ‘mostly minor, technical differences … Fundamentally, you are still going to have the same, basic policy outcome for the country.’”

Cole’s accurate conclusion was that “[e]xempting lawful permanent residents, and others with visas, does nothing to alter the purpose or design of disfavoring a specific religion,” and so, as a result, “the new executive order is, like the old executive order, intended to target Muslims.” It also, noticeably, only targets certain Muslim-majority countries, and not those with which Trump has business ties, but which have histories involving terrorism — like Saudi Arabia and Egypt, for example.

Cole also took careful aim at another of the new executive order’s unchanged examples of executive overreach — the reduction in the number of refugees that Trump intends to accept. As Cole put it, the new executive order “maintains the first executive order’s unilateral reduction to the annual level of refugee admissions, cutting it from 110,000 to 50,000.” However, “That reduction, imposed unilaterally by the president without consultation with Congress, is unauthorized. The immigration statute does not allow the president to order a mid-year reduction in the level of refugee admissions — an action no president has ever done before — much less to do so without consulting Congress.”

And so, 38 days after his first attempt at an immigration ban, Donald Trump’s new executive order looks like it will land the president back where his first order  did — in court, where, it must be presumed, judges will be no more likely to accept his unconstitutional actions than they were the first time around.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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