The Volokh Conspiracy
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As Trump prepares to perhaps issue a new travel ban soon, it's helpful to remember what were the problems with the original travel ban. Here's a link to the Feb. 9 Ninth Circuit decision upholding the preliminary injunction against the travel ban, on the grounds that the ban violated certain aliens' rights to travel without due process of law. Because that was a sufficient ground, the panel declined to rule on other possible grounds, like the argument that the ban targeted particular aliens because they were Muslims, in violation of the Equal Protection Clause.
The 11/9 Coalition, which I'm a board member of, has a mission to work "for the protection of civil liberties and the rule of law. The 11/9 Coalition was founded by concerned US citizens on 11/9/16, the day after the presidential election of 2016. It is dedicated to holding public servants, including elected officials, to their obligations to preserve and defend the Constitution, without regard to their political affiliation.The 11/9 Coalition seeks to educate the public about the constitutional obligations of all three branches of government."
We've issued the following statement about the original travel ban. My co-blogger Ilya Somin is the head of the Coalition's immigration subcommittee, and wrote the original draft. You can recognize a lot of themes here from his earlier blog posts here, here, and here.
Statement Regarding President Trump's Travel Ban
President Trump's recent executive order, banning immigrants from seven Muslim-majority nations, is unconstitutional. It clearly violates the due process rights of Legal Permanent Residents, valid visa holders, and American citizens who travel to the designated countries. Even if President Trump were to issue a new executive order in an attempt to "fix" these infirmities, his travel ban would still be an unconstitutional exercise of his otherwise broad discretion over immigration. This is because an exercise of discretion, however neutral on its face, is unconstitutional if it can be shown to be motivated by racial or religious animus. President Trump's executive order, even if it were to exempt permanent residents, visa holders, and citizens, would still be an unconstitutional abuse of discretion.
The Supreme Court has long recognized that a seemingly neutral regulation qualifies as unconstitutional discrimination if the true purpose behind it is in fact to target a specific racial, ethnic, or religious group. It applied that principle to racial discrimination as far back as 1886, and more recent decisions apply it to discrimination on the basis of religion, as well.
In some cases, it is difficult to determine the true motive behind a facially neutral law or regulation. This is not one of those difficult situations. Trump adviser Rudy Giuliani has openly stated that the order emerged from the then-president-elect's directive to implement his "Muslim ban" and find a way to "do it legally." There are few more blatant cases of pretextual discrimination. The Supreme Court has recognized that even when it comes to the broadest grants of government power, discretion is not unlimited. An exercise of discretion is an unconstitutional abuse when motivated by racial or religious animus.
In short, President Trump must advance a religiously neutral basis for his executive orders, one which would overcome the evidence of his publicly announced desire for a Muslim travel ban. The Ninth Circuit rightfully denied the President's motion to stay the temporary restraining order on the implementation of his travel ban, citing the absence of this showing. Failing to do so renders his executive orders an abuse of discretion, and therefore, unconstitutional.