President Donald Trump’s executive order temporarily barring citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from traveling to the United States—as well as denying entry to refugees from Syria for the indefinite future—has provoked a massive public outcry. But while many around the country criticize the new policy for unfairly targeting people of Muslim faith, Trump and his surrogates have been standing by their handiwork. “This is not a Muslim ban,” the president said in a statement on Sunday. Indeed, in its text, it avoids any explicit mention of Muslims or Islam.
However, a closer look at the executive order’s origins makes clear that it is a direct assault on the fundamental constitutional values of equal protection and religious freedom. How do we know this? Because Trump’s adviser, former New York Mayor Rudy Giuliani, told us so.
Interviewed on Fox News on January 28, Giuliani explained how the administration’s immigration policy morphed from one that was obviously unconstitutional to one that is more subtly so. Host Jeanine Pirro asked, “Does the ban have anything to do with religion?” In response, Giuliani said, “When [Trump] first announced it, he said ‘Muslim ban.’ He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’” “It,” in this case, of course, is a ban on Muslims. Giuliani’s admission is a textbook case of drafting an order in a way that avoids overt declaration of animus against a religious or ethnic group, while retaining the motive and much of the effect. Unfortunately for Trump, courts can see through this kind of rhetorical manipulation. Sally Yates, the former acting attorney general, certainly did. When she refused to enforce the executive order on Monday, she suggested statements made by the administration and its surrogates led her to believe the order was legally suspect. On Tuesday, a senior Justice Department official confirmed Giuliani’s comments were part of her decision.
Federal courts have already begun to push back against the order, and their holdings suggest that they are on to Trump’s ruse as well. In California, Judge Dolly M. Gee ordered that Ali Khoshbakhti Vayeghan, a visa holder who had been deported from LAX to Dubai en route to Iran, be allowed to return to the United States, arguing that the order violated the 14th Amendment Equal Protection Clause and that it also constituted an “establishment” of religion, thus violating one of the two religion clauses of the First Amendment. In New York, Judge Ann M. Donnelly blocked the ban more broadly, granting temporary legal relief to multiple visa holders and refugees facing deportation, citing the 14thAmendment’s Equal Protection Clause and the right to due process. These legal arguments will eventually be considered in an appellate court and perhaps the Supreme Court. There, Giuliani’s statements could set the stage for a finding that the ruling is indeed based in animus and therefore a violation of the Equal Protection Clause, as these judges contend.
An executive order or law displays unconstitutional animus and thus violates the Equal Protection Clause when it has the “purpose and effect of disapproval of a class recognized and protected by state law,” as Justice Anthony Kennedy wrote for the Supreme Court in U.S. v. Windsor. Sometimes the animus is overt, as in the case of an amendment to the Colorado state constitution—deemed unconstitutional by the Supreme Court in Romer v. Evans—that explicitly granted homosexuals fewer legal protections than heterosexuals. Other times, the animus is hidden. But that makes no difference in the eyes of the law. In City of Cleburne v. Cleburne Living Center, for example, the Supreme Court found that even if a policy does not overtly discriminate between two classes of people, a discriminatory motive can taint it. In that case, the court ruled unconstitutional the Texas city’s denial of a zoning permit for a residence for the mentally disabled because it “rest[ed] on an irrational prejudice against the mentally retarded.”
Trump’s administration will tell you that Friday’s executive order is based not in animus towards Muslims—a protected class under the Equal Protection Clause, as all religious groups are—but rather in the desire to protect constitutional values. After all, the order declares that “the United States cannot, and should not, admit those who do not support the Constitution.” But the fact remains that this rationale only surfaced after Trump’s original campaign-trail proposal of a “total and complete shutdown” of Muslims entering the U.S. was heavily criticized as a violation of constitutional law. The new language is a transparent act of deflection, as proven by Giuliani’s statement on Fox News. At its core, the executive order discriminates against members of a particular religious group, however the administration chooses to spin it.
It doesn’t matter, by the way, whether the Muslims in question are citizens or noncitizens, green card holders, visa holders or refugees. The Equal Protection Clause explicitly prohibits “deny[ing] to any person within its jurisdiction the equal protection of the laws.” The Supreme Court made this clear in Plyler v. Doe, when it protected the rights of non-citizen children in Texas, striking down a denial of school funds to the children of undocumented parents. This means that all foreign travelers on U.S. soil—those waiting at U.S. airports, for example—are protected.
More than that, I’d argue that even Muslims not on U.S. soil are protected. Recent case law suggests that no act by a government official—no matter to whom it applies—can be based on disapproval of a race, ethnicity or religion. In other words, when it comes to Equal Protection, it’s the motive of the government and its agents that matters. If a government official seeks to carry out Trump’s order and bar entry into the country, that is a violation of the Constitution and laws of the United States.
There are those who argue that the president’s powers when it comes to immigration are quite broad, and thus a degree of discrimination when it comes to enforcing U.S. borders is legal. In this respect, supporters of Trump’s travel ban have important case law on their side. In Chae Chan Ping vs. The United States, handed down in 1889, the court held that the Chinese Exclusion Act, which prohibited Chinese nationals, including former U.S. residents, from entering the country, did not violate the Constitution because the power of Congress and the president over immigration is plenary or absolute.
But use of the Chae Chan Ping precedent is problematic. For one, it concerned an act of Congress, signed by the president. This entails a higher level of federal power than when the executive acts alone, thus the courts are more likely to defer to it than they are to a single executive action. More importantly, though, the case occurred well before the development of contemporary Equal Protection law. In 1889, that clause did not yet apply to the federal government. In fact, almost the same set of justices that decided Chae Chan Ping also decided the notoriously flawed Plessy v. Ferguson case (1896), holding that separate was equal, a decision that was eventually overturned in the Brown v. Board of Education decision in 1954. To show you how much has changed since then: An immigration ban barring all people of color might have been constitutional at the time of Chae Chan Ping and Plessy, but it should and would likely be overturned today.
Similarly, recent case law suggests that, under the new Equal Protection doctrine, a law banning people of a certain religion from the United States would not hold up. In Church of Lukumi Babalu Aye v. City of Hialeah (1993), Justice Kennedy explicitly drew a connection between the Constitution’s protections of religious liberty and the Equal Protection Clause’s guarantee against invidious discrimination. The court struck down an animal welfare ordinance outlawing ritual sacrifice that might have appeared neutral on its face—it studiously avoided any mention of a particular religion—because the ordinance in its intent targeted the local Santeria religion, the only group in the region that practiced animal sacrifice, thus suppressing their religious freedom. Justice Kennedy based his conclusion that this “religious gerrymander” intentionally singled out an unpopular group based on the context of its enactment, including statements made by officials at the time. Trump’s seemingly neutral order also strains to avoid mentioning religion—but all the lawyerly scrubbing in the world will not remove its taint of religious discrimination.
And there’s more: In addition to violating the Equal Protection Clause of the Constitution, Trump’s order also appears to violate two other sources of religious protection, the Establishment Clause of the First Amendment and a statute passed by Congress called the Religious Freedom Restoration Act (RFRA). The Establishment Clause prohibits policies that favor one religion over another. As Justice David Souter made clear in Kiryas Joel v. Grumet, it requires that “government should not prefer one religion to another, or religion to irreligion.” Trump’s own words provide the evidence that the immigration order contravenes this part of the Constitution. On Friday, the same day he signed the new policy, Trump taped an interview with David Brody of the Christian Broadcasting Network. Brody asked the president, “the refugee changes you’re looking to make, as it relates to persecuted Christians, do you see them as kind of a priority here?” Trump responded, “Yes,” later suggesting that Christian Syrians would receive special treatment under the ban. Although the specifics of that special treatment are not yet clear, Trump’s response to Brody indicates an intent to enact the kind of religious favoritism banned by the Establishment Clause.
Trump’s statements are also reflected in the executive order, which says that the secretary of state should “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” In other words, reading only slightly between the lines, given that the ban effects Muslim majority countries, we should grant priority to Christian refugees. This is exactly the kind of prioritizing of a particular religion that is prohibited by the Establishment Clause.
The RFRA is a law passed by Congress that protects religious believers from adverse effects of federal government policy. It was the basis for the court’s recent decision in Hobby Lobby v. Burell, granting a Christian corporation an exemption from a federal requirement that its employees’ medical coverage include birth control. The court might hold that this law limits executive orders like Trump’s. Brooklyn Law Professor Nelson Tebbe, an expert on religious freedom, contends that “RFRA applies to any ‘person,’ and if that term includes business corporations like Hobby Lobby then it surely includes flesh-and-blood individuals seeking to enter the country. Moreover, it applies against executive actions.”
One final thing: There is a popular counterargument to all constitutional challenges to the executive order—one often cited by Trump adviser Kellyanne Conway—that goes like this: Because the new policy does not target all Muslim-majority countries, it cannot be considered an act of discrimination against Muslims. Legally, this is a weak argument. A violation of the Establishment Clause, the Equal Protection Clause and RFRA is still a violation, even if it affects only one person, let alone the large numbers affected by this policy. To see how absurd Conway’s logic is, consider this: If the president signs an executive order that discriminates against some African-Americans, it doesn’t matter that it doesn’t discriminate against all African-Americans—it’s still illegal.
The simple fact is that the immigration ban puts Trump on very shaky legal ground. Fundamental to all this talk about constitutional clauses and case law is one core principle: The U.S. government does not discriminate based on caste, circumstances of birth or religious belief. And the court’s drive to avoid such intentional animus is so strong that it is willing to strike down laws that might otherwise seem to have good purposes—for example, combating terrorism. Trump’s statements repeatedly show that he has not internalized this core principle of our democracy. As long as he does not, courts and the people who wish to defend the Constitution will continue to oppose him.