By Elizabeth Goitein
January 31, 2017

For anyone who hoped that President Donald Trump would walk back his most radical campaign promises, Friday’s executive order on immigration should dispel any remaining illusions. While at first blush it might seem that a prohibition on immigration from seven Muslim-majority countries falls short of a true “Muslim ban,” it is in fact exactly that. But the administration’s actions don’t just constitute religious discrimination; they also threaten U.S. national security and the rule of law.

The order, of course, is not framed as an attempt to exclude Muslims from the U.S. It instead purports to address a terrorist threat emanating from seven countries—Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—by temporarily banning migration from those nations. Its stated purpose is “to protect [American] citizens from foreign nationals who intend to commit terrorist attacks in the United States.”
The flaw in this logic is that no terrorist attack in this country has ever been carried out by an Iraqi, Libyan, Sudanese, Syrian, or Yemeni immigrant. The attacks of 9/11, by far the most deadly terrorist attacks on U.S. soil, were planned and executed by nationals of Saudi Arabia—a country conspicuously missing from the list, along with other Muslim-majority countries in which Trump has business interests. While an Iranian national and a Somali national were responsible for non-fatal attacks in 2006 and 2016, respectively, this hardly justifies a blanket ban on immigration from those countries, let alone five others.

Given their instability and internal violence, the Obama administration designated these seven nations “countries of concern,” as Trump officials point out. But for exactly that reason, entry into the U.S. by people who have visited those countries—as well as their citizens—is already carefully controlled and subject to a rigorous admissions process. The dearth of domestic terrorism associated with immigrants from those countries is a testament to the success of this approach.

It is not difficult to ascertain the true purpose of this order: to dramatically restrict the entry of Muslims into the country. After all, during the campaign, Trump originally called for a “total and complete shutdown of Muslims entering the United States.” After realizing that an overt “Muslim ban” would invite constitutional attack, he began framing the ban in terms of nationality rather than religion. But both Trump and one of the ban’s architects, Rudy Giuliani, bluntly admitted that the goal remained the same.

Any doubt about the order’s religious focus is erased by another provision: the 120-day suspension of refugee admissions from any country, and the indefinite suspension of refugee admissions from Syria. The order allows case-by-case waivers for people claiming religious persecution, but accords preference to those who belong to a “religious minority” in their country. In an interview with Christian Broadcast News, Trump confirmed that this language was designed to prioritize the claims of Christian refugees over those of Muslims.

Such prioritization is illegal. Government actions that create a preference for some religions over others violate the First Amendment’s establishment clause, as well as the Fourteenth Amendment’s guarantee of equal protection. Even though courts have not definitively resolved the extent of foreigners’ rights in this context, an official expression of religious bias has obvious effects on Americans as well, stigmatizing the practitioners of the disfavored religion and creating a chilling environment for their religious practice and expression.

While Congress has given the president broad authority to exclude classes of aliens from entry into the U.S., that authority does not override the Constitution. Across the country, federal judges signaled their receptiveness to constitutional challenges, issuing temporary orders prohibiting the administration from turning back arriving immigrants.

Constitutionality aside, the order will have severe humanitarian impacts. During the siege of Aleppo, intense media coverage provided Americans with daily reminders that children were starving to death and being buried alive under rubble. The constant coverage has ceased, but the death and suffering continue in areas across Syria and other war-torn nations. Trump’s order cuts off the small avenue of relief that the U.S. refugee program offered.

The order’s discriminatory intent and the hardships it will cause are acutely problematic in their own right—but they will also make us less safe. Although they differed widely in their approaches to counterterrorism, Presidents George W. Bush and Barack Obama both took pains to avoid any appearance of tarring the entire Muslim religion with the terrorism brush. They understood that such a message would be a boon to terrorist groups seeking to recruit new members, and would alienate Muslims—both inside and outside the U.S.—whose cooperation is vital to counterterrorism efforts.

Bush’s and Obama’s concerns have proven well-founded. The Islamic State and other terrorist groups immediately seized upon the order as evidence that America is anti-Muslim, broadcasting it far and wide through social media to help win new adherents. In the meantime, government officials and other security experts fear that the order will strain critical relationships with partners overseas, including those who fight alongside U.S. forces or provide other vital support to our counterterrorism efforts.

What happens when a president issues an executive order that is unconstitutional, inhumane, and dangerous? In a properly functioning democracy, various checks on executive power—including public pressure, an independent Justice Department, judicial review, and legislative oversight—would kick in. Early indications, however, suggest that Trump may not honor these democratic and constitutional constraints.

The Trump administration’s response to the immediate and massive public outcry was to deny its existence. When protesters filled airports and air travel slowed to a crawl, Trump blamed Delta airlines system outages. As crowds of thousands took to the streets in towns across the country to protest the order, a Trump official reported that the ban’s rollout was “a massive success story.” The administration simply wished away the mass demonstrations—the reverse version of Trump’s false claim that 1.5 million people attended his inauguration.

 

Trump’s indifference to the popular will seemingly extends to the rest of the government. In a remarkable turn of events, acting Attorney General Sally Yates announced that the Justice Department would not defend the ban. Such an action is unusual but not unprecedented. The Justice Department has a tradition of independence that helps to ensure that executive officials are not above the law. Accordingly, politicians from both parties (including Trump’s attorney general nominee Jeff Sessions) routinely acknowledge that it is the attorney general’s job to tell the president when he has gone too far. When Yates performed this critical rule-of-law function, Trump promptly fired her.

Even more disturbing, Trump is literally ignoring the courts and members of Congress. When a judge ordered the administration to provide access to attorneys for green card holders detained at one airport, the administration refused to comply. According to lawyers at that airport, customs officials who were showed copies of the court’s order replied simply, “It’s not going to happen,” and then refused any further communication with the attorneys. When members of Congress came to the airport and asked to speak with customs officials, they were denied.

This is no mere inter-branch squabble. For over 200 years, it has been well understood that our Constitution gives courts—not the executive branch—the final word on what the law permits. Denying this basic authority raises the constitutional stakes. An executive order that seeks to ban Muslims from the country violates the Constitution; a refusal to comply with a court’s ruling on the matter subverts the rule of law and sets up a constitutional crisis. A mere 10 days after Trump’s inauguration, there are alarming signs that this is exactly where we are headed.

Elizabeth Goitein is the co-director of the Liberty and National Security program at the Brennan Center for Justice at NYU School of Law.

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