March 7, 2017


Donald Trump's revised travel ban may not satisfy the courts (Democracy in America, Mar 6th 2017, The Economist)

Another potential constitutional roadblock is likely to plague Mr Trump's new release, however: the claim of religious discrimination. The First Amendment prohibits the government from favouring one religion over another, and the Equal Protection Clause of the 14th Amendment bars it from discriminating on religious grounds. In its February ruling, the Ninth Circuit noted that "numerous statements by the president about his intent to implement a 'Muslim ban'" and evidence that the first order "was intended to be that ban" constituted a plausible case against the travel rules. "[E]vidence of purpose beyond the face of the challenged law" is fair game, the Ninth Circuit noted.

In a clear signal that Mr Trump's lawyers understand this embarrassing pedigree as a stumbling block, they struck a key line from the January 27th order: a sentence permitting refugee applications from minorities (that is, Christians) who have been subject to "religious-based persecution". The new executive order contains language insisting that this conspicuous deletion should not be misinterpreted. The original line "did not provide a basis for discriminating for or against members of any particular religion", the order reads, and "was not motivated by animus toward any religion". This has the flavour of protesting too much. The thumbprint of Mr Trump's campaign promise to ban Muslims from America (a call that remains on his website) will continue to mar his most-refined-to-date plan and is certain to give rise to new lawsuits. When courts ask whether the second go at a travel ban amounts to unconstitutional religious discrimination, Mr Trump's press releases, speech transcripts and tweets will all be entered into the record as evidence of the ban's true purpose.

The original travel ban had a related problem the new order does not quite correct: the lack of a lucid explanation of why the restrictions serve the cause of national security. 

Posted by at March 7, 2017 6:31 AM