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The ‘Splainer: Does Trump’s ‘Muslim ban’ flout the law?

(RNS) Plaintiffs argue that the president's executive order amounts to religious discrimination. But whether they'll be able to convince the courts is an open question.

Protesters outside White House on Sunday, Jan. 29, 2017, demonstrating against President Trump's refugee ban. RNS Photo by Jerome Socolovsky

The ’Splainer (as in “You’ve got some ’splaining to do”) is an occasional feature in which the RNS staff gives you everything you need to know about current events to hold your own at the water cooler.

(RNS) President Trump says his immigration order is not a ban on Muslims.

But that didn’t stop several states, the American Civil Liberties Union, the Council on American-Islamic Relations and others from filing suits against Trump.

How strong are these challenges to the controversial order Trump signed on Friday (Jan. 27)? And how do religious rights come into play?

RNS talked to legal experts to better understand these cases as they make their way through the courts.

The order doesn’t restrict “Muslims,” so how could it be religious discrimination?


“Is there anybody in the country who doesn’t think this is about Muslims?” asked Faiza Patel, an expert on national security law at New York University School of Law’s Brennan Center for Justice.

True, the executive order, which includes a restriction on travel to the U.S. for nationals of seven Muslim-majority nations for 90 days, does not directly refer to followers of Islam. But that doesn’t mean it’s not aimed at them, critics say.

During his campaign, Trump explicitly called for a “total and complete shutdown” of Muslims coming into the country. And even if courts opt to discount statements made on the campaign trail, plenty has been said around the rollout of the executive order that points to its discriminatory intent, Patel said.

Former New York Mayor Rudy W. Giuliani, for example, went on television and said Trump asked him to help find a legal way to create a “Muslim ban.”

What are the constitutional objections to the order?

Challengers say the order violates several parts of the Constitution, including the due process and equal protection clauses, and the First Amendment clauses that prohibit Congress from establishing a religion or preventing the free exercise of religion.

In the words of the CAIR lawsuit, the order imposes on Muslims the “stigma of government disfavor” and signals that Islam “is uniquely threatening and dangerous insofar as it is the only religion singled out for disfavored treatment.”

Critics of the executive order also point out its stated preference for Christian refugees. Washington state, the first to challenge the ban in court, noted in its lawsuit Trump’s interview with the Christian Broadcasting Network on the day he signed the order, in which he “confirmed his intent to prioritize Christians in the Middle East for admission.”

The Christian preference “is the weakest spot” in the order, but “I’m still skeptical about whether you could make a successful establishment claim,” said George Washington University law professor Jonathan Turley, speaking on the PBS NewsHour on Tuesday (Jan. 31).

But the ban applies to people who are not Americans — they don’t get constitutional protections, do they?

The Constitution in some instances affords protections to non-Americans, legal experts say.

But more important than the citizenship of challengers to Trump’s orders is their “standing,” said Rick Garnett, who teaches constitutional law at the University of Notre Dame’s law school. “Standing” is the ability to demonstrate a valid legal interest in challenging a law or rule.

People who don’t have a green card, aren’t holding a visa and would “just like to come to the U.S.” would likely lack standing, said Garnett. “The best plaintiffs are going to be people who do already have some kind of legal right to be here.”

What do Trump’s lawyers have going for them when they defend the ban?

Douglas Laycock of the University of Virginia School of Law, an expert on religious liberty issues and no fan of Trump’s immigration order, said that it may nevertheless pass constitutional muster.

“Religious discrimination is generally unconstitutional,” he said. “But  immigration is a special world, and traditionally the Supreme Court has said the government has plenary power at the border.” (“Plenary power” is a legal term indicating that a party wields complete power in a particular area.)

The administration will also point to the Immigration and Nationality Act, which confers upon the president broad power to control who enters the country. It states:

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

On what ground might the executive order be most vulnerable?

That very same Immigration and Nationality Act also includes the following: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

“One section says ‘no discrimination’ and another section delegates enormous authority to the president, so the courts are going to have to reconcile those two provisions,” said Laycock.

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