President Trump has signed a new travel ban. In some respects, the new executive order on immigration looks like the old one, which was held to be unconstitutional. So does the new version avoid constitutional difficulties? Perhaps not. Here, we will focus on the Establishment Clause, putting aside other constitutional issues as well as standing concerns.
Here’s how the new order appears to be similar to the former one. First, it imposes a 90-day suspension on travel by nationals of the same list of Muslim-majority countries (though it exempts Iraq, reportedly because of special cooperation from that government). Also like the old ban, it suspends the refugee program for 120 days.
But there are important differences as well. First, it eliminates the preference for members of minority religions—a provision that was widely understood to prefer Christians. Second, it exempts legal permanent residents (green card holders), visa holders, and everyone currently inside the United States. And it allows officials to grant case-by-case exemptions to its provisions.
Do these differences matter for the constitutional analysis? In one important respect—concerning the Establishment Clause—there is an argument that they do not. In Aziz v. Trump, Judge Brinkema of the federal court for the Eastern District of Virginia held that the history of the immigration ban communicated that it was being adopted for an impermissible purpose, namely to target Muslims. Under a Supreme Court decision called McCreary County, Judge Brinkema explained, “what matters is what an ‘objective observer’ would draw from the text of the policy, enlightened by historical context and ‘the specific sequence of events leading to’ its adoption.”
Applying that rule, Judge Brinkema explained that the immigration order was the latest manifestation of the “Muslim ban” that Trump promised on the campaign trail. The judge pointed out that “the ‘Muslim ban’ was a centerpiece of the president’s campaign for months,” and that he reiterated that position as late as July. In response to a question about whether he still intended to implement the Muslim ban, Trump answered “Call it whatever you want. We’ll call it territories, OK?” After the first ban was signed, Giuliani confirmed that “Trump’s desire for a Muslim ban was the impetus for this policy,” and that lawyers had reviewed the text to ensure that it could fulfill that purpose within the letter of the law.
Nor does it matter that the list of affected countries was formulated by the previous administration, according to the court. Quoting again from the Supreme Court’s opinion in McCreary, Judge Brinkema explained that an identical policy could be constitutional in one context but unconstitutional in another because of its history, context, and evident purpose: “One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage. This presents no incongruity, however, because purpose matters.”
How does Judge Brinkema’s opinion in Aziz v. Trump apply to the new executive order? Although it’s difficult to predict, it’s at least conceivable that a court could invalidate the new order under the same rationale. After all, the new order reportedly retains key features of the old one, including the list of countries (now minus Iraq) for the 90-day suspension, as well as 120-day refugee suspension. Moreover, Trump’s statements since his first order was invalidated may not reassure courts. At his press conference on February 16, the president said:
“. . . as far as the new order the new order is going to be very much tailored to the, what I consider to be a very bad decision, but we can tailor the order to that decision and get just about everything in some ways more but we’re tailoring it now to the decision we have some of the best lawyers in the country working on it. And the new executive order is being tailored to the decision we got down from the court. OK?”
A court performing the McCreary analysis would have room to conclude that the new order is animated by the same religiously discriminatory motive as the first one. This statement suggests that the president is trying to do everything he can to implement the “Muslim ban” in a form that will stand up in court.
Does that effort to guarantee its legality mean that the new order will be upheld? Not necessarily. In McCreary itself, the Supreme Court invalidated a Ten Commandments display in a Kentucky courthouse. Although the county’s ultimate display might have been upheld against a different history, the Court explained that an objective observer would know about the history of the display, and would understand that the county’s objective was to endorse a religious message. And that was true even though the county had made several changes to the policy to make it comply with the Establishment Clause, such as surrounding it with increasing numbers of secular symbols. So too here, a court could conclude that Trump’s new executive order cannot escape the perception that it is animated by the same impermissible purpose as the original “Muslim ban.”
Someone could object that the Ten Commandments monument in McCreary was religious on its face, and that the county’s purpose mattered only in combination with that fact. Here, the objection could run, the immigration ban no longer deploys religious classifications. While that is true, the fact remains that each of the six countries has a Muslim majority, and that the list does not include countries that the state department lists as “Terrorist Safe Havens” that are majority Christian.
Now, a different order might not raise these constitutional questions. For example, if President Trump had simply subjected all new visa applications to “extreme vetting,” regardless of the nationality of the applicant, that might have effected a clean enough break to erase any connection with the purpose of the previous measure. But this order, by contrast, is unlikely to silence such questions completely. And those questions will persist even if no court is willing to strike down the ban, perhaps because those courts are unwilling to find that the individuals directly harmed by the EO have standing to bring a suit in federal court.
Image: Attorney General Jeff Sessions (C), Secretary of Homeland Security John Kelly (L) and Secretary of State Rex Tillerson take part in a news conference about reconstituted travel ban at the U.S. Customs and Borders Protection headquarters, March 6, 2017 – Mark Wilson/Getty