The courts took a dim view of President Trump’s original executive order on immigration in part because it seemed intended to discriminate on the basis of religion.
To be sure, the order mentioned no particular religious group. But comments by Trump and his sometime advisor Rudy Giuliani indicated that its bar to entry from seven majority-Muslim countries and prioritization of persecuted religious minorities for refugee status was a pretext for disfavoring Muslims and favoring Christians.
Yesterday’s revised order, which revokes the earlier one, no longer prioritizes on the basis of religious persecution. It does, however, go out of its way to deny that the original order was religiously discriminatory.
Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. Â While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. Â That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities — whoever they are and wherever they reside — to avail themselves of the USRAP [United States Refugee Admission Program] in light of their particular challenges and circumstances.
Color me dubious.
Yes, the original order applied to refugees from every nation, but why did it limit the priority to members of religious minorities as opposed to anyone suffering religious persecution? In Syria, to take a critical example, Sunni Muslims are a religious majority suffering persecution at the hands of the Alawite minority.
Moreover, if the original order was intended (contrary to criticism of it) to apply to minority sects within a religion, why did the President’s brief to the 9th Circuit fail to point that out?
One question easily answered is why the revised order raises the prioritization issue at all, given that it doesn’t itself prioritize refugee-status-seekers suffering religious persecution.
It’s because the Trump/Giuliani comments remain relevant to evaluating the order’s purpose.
Not only does the revised order, like the original one, target majority-Muslim countries but both orders give the secretaries of state and homeland security the power to waive restrictions to entry on a case-by-case basis. Is the evidence of original intent sufficient to conclude that they will do so on a religiously discriminatory basis?
That said, and notwithstanding the assertions of Democratic elected officials, the revised order is significantly less objectionable than the first one. While it may disappoint some of the President’s more Islamophobic supporters, it would seem to stand a much better chance of passing legal muster.