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In effort to stave off legal challenges to his initial Executive Order (EO) banning travel by nationals of seven predominantly Muslim-majority countries, President Donald J. Trump issued a revised EO that addresses several shortcomings. Yet, the new EO, issued on March 6, 2017, remains fundamentally flawed because it perpetuates the central constitutional infirmity: discrimination on the basis of religion in violation of the Establishment Clause.
Trump issued the original EO, entitled "Protecting the Nation from Foreign Terrorist Entry into the United States," on January 27, 2017. (The revised EO bears the same title). The original order caused widespread chaos and unwarranted hardship for noncitizens traveling to the United States, including refugees and legal permanent residents. The EO sparked legal challenges by individuals and by several states, nearly all of which resulted in judicial rulings invalidating key portions of the order. Most notably, the U.S. District Court for the Western District of Washington blocked enforcement nationwide of the EO's provisions temporarily suspending entry of noncitizens from the seven identified countries and temporarily suspending the U.S. Refugee Admissions Program. In a unanimous decision, the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration's motion for an emergency stay of the district court's order pending appeal.
The Trump administration's decision to issue a revised EO represents a concession of the first order's legal indefensibility. The revised EO addresses several flaws, including excluding application of the travel ban to lawful permanent residents. It also does not apply to foreign nationals with valid visas or refugees whose travel to the U.S. has previously been scheduled with the State Department. Those provisions, coupled with the 10-day delay in implementation, are designed to avoid a repeat of the mass chaos that accompanied the first EO.
But the immigration ban continues to target six nations that are more than 90 percent Muslim: Iran, Somalia, Sudan, Libya, Syria and Yemen The EO's sole changes in this regard are to make the ban on Syrian nationals temporary and to exclude Iraqi nationals, purportedly based on increased cooperation from Iraq, but more likely based on political and diplomatic pressure from Iraq and internally from within the Trump administration. Additionally, the revised EO maintains the temporary suspension of refugee admissions and the 50,000 cap on refugees for 2017 once the program resumes (thus cutting the current total in half).
The order also poses new concerns, including by requiring relevant federal agencies to collect and publish information about convictions of terrorism-related offenses, government charges of terrorism, and gender-based violence against women committed by foreign nationals, while containing no corresponding publication requirement for U.S. citizens. This provision discriminates based on national origin and is likely to inflame bias against noncitizens by deliberately misrepresenting to the public that they alone—and not U.S. citizens—are responsible for terrorist activity. Indeed, the Trump administration could seek to use this information to lay the groundwork for further bans or restrictions on immigration.
The Constitution's Establishment Clause prohibits discrimination by the government based on religion, including giving preference to one religious denomination over another. Like the original order, the revised order continues to discriminate both in its purpose and effect by maintaining the ban on countries that are overwhelming Muslim. The ban need not include all Muslim-majority countries; as long as religious discrimination is a motivating factor, it may run afoul of the Establishment Clause.
The Trump administration, to be sure, will defend the revised EO by claiming that religion is not the motivating factor and that the ban on immigration from the six countries is based on national security considerations. Further, the administration will likely point to the revised EO's elimination of any preference for religious minorities.
But context is crucial, and nothing in the new order is sufficient to overcome the evidence of discriminatory purpose surrounding the original order. That evidence includes multiple statements by Trump indicating his wish to restrict immigration of Muslims to the United States as well as a statement by Trump's close advisor, former New York City mayor Rudolph Giuliani, that Trump was looking for a way to make a Muslim ban legal.
Further, despite the more restrained rollout that accompanied the new EO, the discriminatory intentions of Trump and several key advisors continue are still evident. For example, White House adviser Stephen Miller noted that any changes to the first executive order would be "mostly minor, technical differences," and that "[f]undamentally, you are still going to have the same, basic policy outcomes for the country."
Additionally, evidence continues to show that the Trump administration's purported security concerns are merely a misguided attempt to use territory as a proxy for religion. A Department of Homeland Security report recently found "country of citizenship is unlikely to be a reliable indicator of potential terrorist activity" and that "few of the impacted countries [under the executive order] have terrorist groups that threaten the West."
Previously, Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia held in Aziz v. Trump [PDF] that the travel ban in the original EO was adopted for the constitutionally impermissible purpose of discriminating against Muslims. Applying the Supreme Court's decision in McCreary County v. ACLU—where the court looked at the history of events surrounding the visible display of the Ten Commandments in Kentucky courthouses—Judge Brinkema concluded that the EO was the outgrowth of Trump's previously promised Muslim ban.
The revised EO is best understood as another step by the Trump administration in its efforts to achieve this goal. It seeks to clean up some glaring instances of executive overreach to defeat legal challenges, while keeping the underlying policy of discriminating against Muslims intact.
The first EO may have made an easier target, given the disorder it unleashed and its inclusion of legal permanent residents. But none of the Trump administration's tinkering to the revised EO repairs its fatal flaw.
Jonathan Hafetz is Professor of Law at Seton Hall University School of Law. He has served as counsel for amici curiae in legal challenges to President Trump's travel ban executive orders.
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