For those of you who missed the news that two federal judges this week blocked enforcement of the third iteration of President Trump’s travel ban, I know you’ve been distracted by other things. Like the president’s flip-flop on the bipartisan Obamacare stabilization bill. And his latest fight with a Gold Star family.
Still, the ban is a pretty big deal, since it would indefinitely bar entry to the U.S. to anyone from seven foreign countries, most of them majority-Muslim. In Trump’s first two executive orders, you’ll recall, all of the countries was majority-Muslim: Iran, Iraq (removed in Executive Order 2), Libya, Somalia, Sudan, Syria, and Yemen.
Executive Order 3 (EO-3) substituted Chad for Sudan, added North Korea, and threw in some Venezuelan government officials and their families for good measure. The judges were unimpressed.
In Hawaii, U.S. District Court Judge Derrick Watson enjoined EO-3 on the grounds that it exceeded the president’s statutory authority under immigration law because it barred visa applicants “on the basis of nationality.” In Maryland, U.S. District Court Judge Theodore Chuang limited enforcement of EO-3 because, in continuing to disfavor Muslims, it likely violates the Constitution’s Establishment Clause.
Unsurprisingly, the Justice Department has filed a notice of appeal, but as the Washington Post pointed out on Thursday, “The policy alienates many while achieving nothing. It is close enough to the promised Muslim ban that the courts remain hostile to it, but diluted enough that the president no longer trumpets it as an achievement.”
Might I suggest another reason for abandoning the policy?
Earlier this month, Attorney General Sessions issued a stirring memorandum concerning the protection of religious liberty under federal law. “In the United States,” it declared, “the free exercise of religion is not a mere policy preference to be traded against other policy preferences. It is a fundamental right.”
To its credit, the memorandum makes clear that Muslims are covered. It states, for example, that “a Bureau of Prisons regulation that bans a devout Muslim from growing even a half-inch beard in accordance with his religious beliefs substantially burdens his religious practice.”
The memorandum also makes clear that a key to guaranteeing religious free exercise these days is the 1993 Religious Freedom Restoration Act (RFRA):
RFRA prohibits the federal government from substantially burdening a person’s exercise of religion, unless the federal government demonstrates that application of such burden to the religious adherent is the least restrictive means of achieving a compelling governmental interest. RFRA applies to all actions by federal administrative agencies, including rulemaking, adjudication or other enforcement actions…
Now there’s a strong argument (see the amicus brief of the American-Arab Anti-Discrimination Committee against EO2) that the travel ban — an enforcement action if ever there was one — substantially burdens the ability of Muslims in America to exercise their religion. Consider, for example, the case of permanent residents (but non-citizens) from the designated countries who want to make the pilgrimage to Mecca. Under the travel ban, they would not be permitted to return to the U.S.
No doubt, national security counts as a “compelling state interest” under RFRA (though whether it was merely a pretext for keeping Muslims from entering the country is a very open question). There’s no way that barring everyone from a given country counts as the “least restrictive means” of advancing that interest.
The Trump Administration adheres to the view that religious liberty is a fundamental right rather than a mere policy preference to be traded against other policy preferences. Someone needs to explain to the president that his own most sacred principle is at stake.