On Monday, the Trump administration issued a revised version of its Jan. 27 Executive Order barring entry of all refugees and citizens from six predominantly-Muslim countries, hoping to fix the flaws that led multiple courts to strike down the original version. But sometimes the genie can’t be forced back into the bottle.
Although scaled back and sanitized, the new Executive Order continues to target citizens from predominantly-Muslim countries in a thinly-veiled effort to implement the “Muslim ban” that Trump promised while campaigning for president, in violation of the First Amendment’s Establishment Clause.
{mosads}The original executive order was a fiasco. Issued without consulting the Department of Homeland Security and other key agencies, the Order created an irrational blanket ban on entry by citizens from seven predominantly-Muslim countries, creating chaos at airports and barring the entry of even longtime Lawful Permanent Resident aliens with families and jobs in the United States (until the Trump administration hastily “reinterpreted” it not to apply to them), and created an irrational blanket ban on entry by citizens from seven predominantly-Muslims countries.
Courts enjoined part or all of the order in a series of decisions over the following 10 days, culminating in a unanimous decision by the Ninth Circuit Court of Appeals upholding a nationwide injunction.
Wisely, the Trump administration chose to rewrite the Executive Order rather than continue to defend the original. The new Order differs in important respects from the Jan. 27 version, and alleviates some — but not all — of the courts’ concerns.
The new order continues to ban all refugees from entering the United States for 120 days, but it no longer singles out Syrian refugees, who had been indefinitely barred under the original Order. The new Executive Order also takes Iraq off the list of predominantly-Muslim countries whose citizens were prohibited from entering the United States for 90 days, though it continues to bar entry of citizens and nationals from Sudan, Yemen, Syria, Somalia, Iran, and Syria, with some exceptions.
Most important, the Order does not apply to those who have already been granted a visa, or who are currently in the United States. This appears to be a direct response to the Ninth Circuit, which ruled against the earlier Executive Order on the ground that foreign nationals with significant ties to the United States have a constitutional right to due process before they can be denied entry into the United States, including a right to notice and an opportunity to be heard.
The new Executive Order tries to carve out from the travel ban anyone who could make such a claim. And because the Order does not go into effect for ten days, it may avoid the confusion and chaos created by the Jan. 27 order, which applied even to those with visas in mid-voyage to the United States.
Finally, the new Executive Order eliminates the exception for those claiming persecution as religious minorities. Many had pointed to this provision as evidence of the Executive Order’s animus towards Muslims in violation of the First Amendment’s Establishment Clause, which bars the government from preferring any religion over another.
The Trump administration is hoping this scaled down, sanitized version of the Jan. 27 Order will get the green light from the courts. But the revised Executive Order cannot so easily escape its past. Courts can and should look to the context in which the order was created to determine whether it violates the Establishment Clause by irrationally targeting Muslims.
The evidence of such animus is overwhelming. As a candidate for president, Trump called for “a total and complete shutdown of Muslims entering the United States.” Upon signing the original Jan. 27 Executive Order, President Trump vowed to “keep radical Islamic terrorists out of the United States of America” — apparently unconcerned about terrorists with other religious backgrounds.
And he told the Christian Broadcast News that the Jan. 27 Executive Order’s provision giving preferential treatment to refugees of “minority religions” was specifically intended to benefit Christians. Like the Jan. 27 version, the revised Order targets citizens from predominantly-Muslim countries, even though officials at the Department of Homeland Security concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”
As the non-partisan Migration Policy Institute explains, such country-specific bans are unprecedented in modern times, harkening back to shameful era of the 1882 Chinese Exclusion Act and similar racist legislation.
Nonetheless, the Trump administration wants the courts to review the revised Executive Order as if it was written on a clean slate. Courts are not so easily fooled, and the American people should not be either.
Amanda Frost is a professor of law and director of the S.J.D. Program at American University Washington College of Law.
The views of contributors are their own and not the views of The Hill.