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Neither Facially Legitimate Nor Bona Fide–Why the Very Text of the Travel Ban Shows It’s Unconstitutional

As the litigation over the travel ban moves to the Supreme Court, the most important passage in the Fourth Circuit’s en banc opinion may be a tangential footnote finding “yet another marker” of illegitimate purpose in the text of the Executive Order. Both the first version of the Executive Order (of January 27) and the second version (of March 6) include language that any informed observer would recognize as evidence that the purpose of the travel ban is to gratify and further incite hostility against Muslims.

Advocates seeking to persuade doubting Justices should not be distracted by the voluminous debates about whether candidate Trump’s statements count against the constitutionality of President Trump’s actions.  For Justices inclined to interpret narrowly the standard of review in immigration cases, the explicit statement of purpose in the first EO, and the residual markers in section 11 of the revised EO, should provide the starting point.

In the first EO, the final paragraph of section 1 explained the EO’s purpose as follows:

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.  The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.  In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

As the Fourth Circuit noted, “Numerous amici explain that invoking the specter of ‘honor killings’ is a well-known tactic for stigmatizing and demeaning Islam and painting this religion, and its men, as violent and barbaric.”  The thinly coded incitement throughout this purpose paragraph is perhaps best explained in Aziz Huq’s amicus brief for Muslim Rights, Professional and Public Health Organizations.

Consistent with that goal, section 10(iii) of the first EO directed the Secretary of Homeland Security to collect and publish “information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals…”  The mandate to publish enlists the department in nothing short of an ongoing campaign of anti-Muslim agitation.

The March 6 EO, which President Trump has now dismissed in a tweet as a “politically correct” version of his real policy, deletes the explanation of purpose, but retains the collection and dissemination of data on “types of acts of gender-based violence against women, including so-called ‘honor killings,’” in section 11(iii).  That directive has no conceivable relation to the alleged national security purpose of the travel ban, and it continues to reveal the true underlying purpose of both orders.

This facial evidence of illegitimate purpose has particular salience because the dispute involves immigration policy, and the Justices are likely to view it through the lens of specialized precedents that have operated in relation to substantive immigration restrictions.  In the 1970s, when the Supreme Court abandoned an earlier doctrine that had made constitutional challenges to criteria for grant or denial of admission nonjusticiable, it articulated instead a diluted test of constitutionality.  Kleindienst v Mandel (1972) and Fiallo v Bell (1977) required the government to show that the restriction was based on a “facially legitimate and bona fide reason.”  The time may have come to move beyond this standard, but the Justices might not – and need not — make the case of Trump’s EO the occasion to do so.

The opinion of Justices Kennedy and Alito, concurring in the judgment in Kerry v Din (2015), sheds light on the meaning of the standard, explaining that the government’s reason must be legitimate on its face and the government must be acting in good faith.  If the challenger makes an affirmative showing of bad faith, the court may look to additional factual details that determine the constitutionality of the government action.

While both elements are required to uphold a government restriction, it may be safer for advocates to point to indications of unlawful purpose on the face of the orders before turning to extrinsic evidence of bad faith.  The January 27 version of the order is so obviously the context of the March 6 version that both should be examined together, yet even viewing the March 6 EO in isolation, the incongruous attention to honor killings cries out for further inquiry.

The Fourth Circuit rightly asserted that “we cannot shut our eyes” when evidence “stares us in the face.”  The religious animus that underlies the Executive Orders is already visible in the text, and the less formal statements merely provide confirmation.  That point deserves more emphasis.

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About the Author

J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, Co-Director of Harvard's Human Rights Program, Former Member of the Human Rights Committee (2011 to 2014)