Donald Trump’s executive order restricting immigration from certain predominantly Muslim countries set off a political chain reaction that will rumble through Washington for weeks, if not months. Three days after it was signed, the order resulted in the firing of acting U.S. Attorney General Sally Yates, who refused to defend it. This, in turn, prompted Senate Democrats to boycott or delay confirmation hearings scheduled for several of Trump’s cabinet nominees, including his pick for attorney general, Senator Jeff Sessions of Alabama. The controversy over the order is also likely to spill into the battle over Trump’s Supreme Court nominee, Neil Gorsuch.
The legality of Trump’s action will first be tested in U.S. district courts, where challenges are mounting by the day. At issue is whether the order discriminates against Muslims based on their religion, or if it’s simply a form of “extreme vetting” of refugees, as Trump claims. The federal court cases raise questions about bedrock constitutional provisions such as “due process” and “equal protection,” as well as a part of the First Amendment known as the establishment clause, which prohibits laws favoring one religion over another.
In a 1982 ruling involving regulation of charitable solicitations by religious groups, the Supreme Court explained that the “clearest command” of the establishment clause “is that one religious denomination cannot be officially preferred over another.” Trump’s order appears to run afoul of that by establishing preferential treatment for refugees identified with “a minority religion”—Christianity—in their home country.
As protests grew in the wake of his signing the executive order, Trump issued a statement on Jan. 29 saying, “This is not about religion. This is about terror and keeping our country safe.” Yet in an interview, Trump said Christian refugees would be given priority to enter the U.S. Specifically, the Jan. 27 order bans entry for 90 days of nationals from seven predominantly Muslim countries: Syria, Iraq, Iran, Sudan, Libya, Somalia, and Yemen. It also bans resettlement of Syrian refugees indefinitely and suspends all other refugee resettlement for 120 days. In the frantic period that followed its signing, as refugees were detained at airports and immigration lawyers and protesters gathered in baggage-claim areas, four federal judges—in Brooklyn, Boston, Seattle, and Alexandria, Va.—issued rulings blocking aspects of the order.
Those rulings were provisional and didn’t delve into constitutional issues. Instead, they sought to prevent deportations or other actions that would harm individuals. Lawyers for those affected will likely return to court in the coming weeks to flesh out their arguments. Additional suits have since been filed that challenge the order’s constitutionality, including one on Jan. 30 by the Council on American-Islamic Relations, and another on the same day by the state of Washington. Massachusetts, New York, and Virginia have also joined lawsuits challenging the order.
The Trump administration will send attorneys from the U.S. Department of Justice to defend the order in each of these cases. After firing Yates as acting attorney general, Trump replaced her with Dana Boente, U.S. attorney for the Eastern District of Virginia, who vowed to fall in line behind the White House.
The American Civil Liberties Union, in challenging the order, described it as a “Muslim ban wrapped in paper-thin national security rationale.” Dan Siciliano, a law professor at Stanford, says it was “clearly a nationality ban and a de facto religion ban.”
Trump’s tweets and declarations could become evidence in court of what he intends to accomplish with the order. In December 2015, responding to the San Bernardino shootings that killed 14 people, Trump called for a “total and complete shutdown of Muslims entering the United States,” a position he tweaked a few months later by suggesting that immigration be suspended from “any nation that has been compromised by terrorism.”
Trump’s argument that the order wasn’t about religion may have been undermined by former New York Mayor Rudy Giuliani, who told Fox News on Jan. 28 that Trump wanted a “Muslim ban” and asked him to assemble a commission to figure out how to do it legally. Giuliani said the commission recommended the order focus not on religion but on “areas of the world that create danger for us. ... Perfectly legal, perfectly sensible.”
Theodore Ruger, dean of the University of Pennsylvania Law School, says Trump’s comments that the order doesn’t target Muslims may be immaterial. “It’s possible to challenge government action as discriminatory to a particular religion even if there’s no mention of that religion,” says Ruger.
Justice Department lawyers defending the executive order can argue that federal law gives the president broad authority to exclude noncitizens “who would be detrimental to the interests of the United States.” “No judge can look at the order and analyze it as a Muslim ban because the vast majority of Muslims around the world are not affected,” says Jonathan Turley, a law professor at George Washington University. Eugene Volokh, a professor at UCLA School of Law, says that judges could interpret the order as targeting people from countries where “jihadist sentiments” are common, which could give Trump legal cover.
Ironically, Democrats, in fighting the order, may echo concerns voiced repeatedly by Republicans under the Obama administration that the executive branch exerts too much power. Republican-led states frequently sued the federal government over President Obama’s executive orders on pollution regulation, overtime pay, and immigration policy. In 2014, Texas led an attack on Obama’s immigration reforms, which would have sheltered more than 4 million undocumented immigrants from deportation and provided them with work permits that could have led to federal benefits such as Medicaid and Social Security.
The federal judge presiding over the case said he doubted Obama had the authority to unilaterally alter immigration policy and blocked the programs until he could decide if they were legal. A deadlocked Supreme Court refused to lift the injunction last summer, effectively ending the case.
Typically Congress sets long-term immigration policy and could reject Trump’s immigration ban. That’s unlikely with a Republican majority in both houses. Some GOP senators, however, including John McCain of Arizona, Bob Corker of Tennessee, and Lindsey Graham of South Carolina, have criticized the order for being hastily implemented and for sending the wrong message to allied countries.
The Senate’s consideration of the Gorsuch nomination will undoubtedly be complicated by the immigration order. Gorsuch, 49, has served on the federal appeals court in Denver since 2006. His best-known cases were religious-rights disputes that ultimately reached the Supreme Court. Gorsuch sided with Hobby Lobby Stores, whose owners objected to providing birth-control coverage required under Obamacare. But Gorsuch is a critic of a Reagan-era judicial doctrine that helped bolster the power of the executive branch.
On Jan. 31 the media and the White House were still sparring over how to refer to the order. In a press briefing that afternoon, White House Press Secretary Sean Spicer insisted that the order isn’t a ban, saying “It’s not a Muslim ban. It’s not a travel ban. It’s a vetting system to keep America safe.” But just the previous day, a Trump tweet had called it a ban.
The bottom line: Trump’s immigration order may wind up in front of the Supreme Court, where his nominee, Neil Gorsuch, could cast a crucial vote.