The Trump administration issued its revised immigration executive order on Monday, and it fixed errors as small as split infinitives. But did it fix the most important problem, the probable unconstitutionality of the original executive order?
Lawyers challenged the original executive order on two constitutional bases:
1. It did not provide due process of law to the citizens of the excluded nations who wanted to visit or reside in the United States, and;
2. It violated the Equal Protection and Establishment Clause rights of those persons, since it discriminated against them on the basis of religion.
First to the good news. The revised policy is much less likely to violate the Due Process Clause. The new executive order creates a three month “pause” for issuing new visas and a four-month pause for asylum and refugee applications from six nations. The Trump administration eliminated Iraq from the list of excluded nations. Additionally, Syria is no longer subject to a permanent ban. There might be more permanent — and more objectionable — bans in the future, but this executive order does not require that.
{mosads}More importantly, the new executive order applies only to those persons who are outside the United States and did not have a valid visa at the time of the first executive order. That will probably eliminate scenes of chaos at our nation’s airports, because valid visa holders will not be turned away. Additionally, the order explicitly does not apply to lawful permanent residents, persons granted asylum or refugee status, or dual nationals traveling on the passport of a country other than the six excluded nations.
Finally, the order gives government officials discretion to admit persons from the six excluded nations based on “undue hardship” and gives nine examples of hardship, including returning students, family members of United States citizens, persons who have “provided faithful and valuable service” to the United States, and so on.
Because of their respective political and legal strategies, both proponents and opponents of limitations on immigration are arguing that the new executive order is not a big change from the old one. Ordinary citizens should know that the new order is a lot more reasonable.
That may not be enough to guarantee the constitutionality of the executive order, however, because there is a substantial argument that by singling out predominantly-Muslim nations, the Trump administration is discriminating on the basis of religion. Here, the president did himself no favors during the campaign, and his successful political strategy may undermine the order’s legal arguments. At the time of publication, the Trump/Pence campaign website continues to host a page calling for “a total and complete shutdown” of Muslim immigration.
The Trump administration will likely claim that the new executive order is a routine regulation based on nationality, not religion, and thus consistent with the Constitution. Regulations based on nationality are common in immigration law.
For years, for example, Cuban nationals were subject to very favorable immigration rules. Likewise, in the first half of the Twentieth Century, Congress enacted laws that completely barred immigration from Asian countries. Regulations like these may be unwise, some may think them evil, but they are not unconstitutional.
The problem for the Trump administration, however, is that nationality may be a pretext for religious discrimination. Courts are much more likely to hold that discrimination based on religion violates the Equal Protection and Establishment Clauses of the United States Constitution. This raises one of the most fraught questions in constitutional law: Under what circumstances should courts look beyond the seemingly neutral language of the law and consider the potentially unconstitutional effects of that law.
Take, for example, Loving v. Virginia, the famous case voiding state laws that forbade interracial marriage. Supporters of the law contended that it provided “equal protection of the laws,” because persons of all races were forbidden to marry outside their race. The Supreme Court rightly rejected this argument, because though “equal” in language, the state laws perpetuated racial discrimination.
Loving was undoubtedly about race, so it is not a perfect analogue to the situation here, where nationality may or may not be a stand-in for religion. But the Supreme Court has often looked beyond the words of the statute to understand what really is going on. For example, the Supreme Court struck down one federal law regulating guns in or near schools and another law regulating violence against women, despite the government’s protestations that the laws were really about commerce.
Opponents of the new executive order do not have a slam-dunk argument for unconstitutionality by any means. But, ironically, President Trump’s repeated, emphatic commitment to exclude Muslims from the United States may undermine his ability to regulate immigration from predominately-Muslim nations.
William Fernholz is a lecturer-in-residence at the UC Berkeley School of Law and the director of its appellate and competitions programs.
The views of contributors are their own and are not the views of The Hill.