Revised Trump Travel Ban Will Face Legal Hurdles, Too

Government actions can't be motivated by hostility to a religion, the Supreme Court has ruled. Context counts.

They won't like the next one, either.

Photographer: DON EMMERT/AFP/Getty Images

President Donald Trump is poised to announce a redrafted executive order on immigration from seven majority-Muslim countries. 1 Will it pass legal muster? Or will the courts once again thwart the president’s will?

Early reports suggest that the new order will be drafted to avoid many of the legal problems that were posed by the earlier version, and to make judicial review harder to obtain. But the crucial question is whether the courts will consider the political context in which the order was drafted to conclude that it is still a Muslim ban under another name.

Whether the court should do so turns out to be a close legal question. But Supreme Court precedent suggests that it should -- in which case the new order could well be blocked like the original.

The expected fixes in the new order would improve the administration’s legal position. For one thing, the new order is expected to exclude legal permanent residents with green cards, who were included in the original order according to the administration’s early guidance, then excluded by a later interpretation.

In its decision upholding a temporary restraining order by a federal judge in Seattle against enforcement of the first travel ban, the U.S. Court of Appeals for the Ninth Circuit treated the executive order as covering green card holders. That mattered because, as the court said, green card holders have a stronger constitutional claim to be covered by the due-process clause of the Constitution than do other visa holders. By excluding green card holders, the new order would force plaintiffs to identify different people who are harmed by the order.

Another smart revision would be to omit the provision that said religious minorities in the seven countries -- which is to say, almost certainly Christians – would be given preferential treatment when refugees are once again let into the U.S. That provision was the only part of the text that could be used to suggest that the order unconstitutionally favored one religion, Christianity, over another, Islam.

The Trump administration would also be smart to phase in the new order to avoid trapping visa holders who are in transit, which creates sympathetic plaintiffs detained at the airports.

But that’s not the end of the game, constitutionally speaking. Even if due process is omitted from the case entirely, plaintiffs could still allege once more that the order discriminates on the basis of religion in violation of the free-exercise and establishment clauses of the First Amendment.

To get standing under the free-exercise clause, a potential plaintiff would ordinarily need to allege that religious liberty is being burdened. That argument could potentially be advanced by the states of Washington and Minnesota on behalf of their universities who, the Ninth Circuit believed, could litigate on behalf of students, faculty and visiting speakers who would be denied entrance. It’s true that non-citizens outside the U.S. might not be entitled to religious liberty, especially in the realm of immigration. But a court could also hold that anytime the U.S. government acts, it must act without religious discrimination.

Alternatively, or in conjunction, U.S.-based Muslims could argue that a law motivated by Islamophobia affects their status as citizens. Under Justice Sandra Day O’Connor’s “endorsement” theory of the establishment clause, the Constitution prohibits the government from sending a message to some people that they are favored members of society on the basis of their religion, and a corresponding message to others that they are disfavored members by virtue of their religion.

One or both of these theories should be enough for a sympathetic court to find both that a plaintiff has standing and also that existing constitutional rights are implicated.

That would leave the question whether the order actually discriminates on the basis of religion. The leading case regarding unconstitutional religious animus is the 1993 classic, Church of the Lukumi Babalu Aye v. City of Hialeah.

That case involved an ordinance passed by the Hialeah, Florida city council that effectively outlawed ritual animal-sacrifice in the city. The court held that the law was directed at practitioners of the Santeria religion, and was therefore a violation of their free exercise.

The opinion by Justice Anthony Kennedy began by saying that although the text of the law didn't say anything about religion, that was not the end of the inquiry because “the Free Exercise Clause protects against governmental hostility which is masked, as well as overt.”

Kennedy then turned to “the record in this case,” which, he held, “compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances.”

He reasoned that “apart from the text, the effect of a law in its real operation is strong evidence of its object.” And he concluded that the ordinance was in effect gerrymandered to cover Santeria ritual practices while exempting other religious slaughter.

The decision therefore established the principle that the constitutionality of a law didn't rise and fall on the text alone. The law’s real-world effects could be relevant, too. As the Ninth Circuit put it in its ruling against the first Trump travel ban, “it is well established that evidence of purpose beyond the face of the challenged law may be considered.”

And of course the real-world effect of the Trump ban is to exclude immigrants from seven majority-Muslim countries, none of which has sent terrorists to the U.S.

In the 1993 Florida case, Kennedy tried to go further by considering statements in the trial record made by witnesses appearing before the city council who had made anti-Santeria comments. This part of the opinion got just four votes. Justice Antonin Scalia declined to join in light of his rejection of the general relevance of legislative intent.

But a plurality opinion is still a precedent -- so lower courts would be justified in considering the broader record.

That would include statements by Trump as well as his ally Rudolph Giuliani tending to show that the travel ban is a Muslim ban dressed up in legal forms.

The upshot is that a court wanting to block the new order could credibly do so, with the authority of the Florida decision behind it. Trump may therefore be set up for another high-profile judicial defeat.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. Iraq, Iran, Libya, Somalia, Syria, Sudan and Yemen

To contact the author of this story:
Noah Feldman at

To contact the editor responsible for this story:
Jonathan Landman at

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