Ratio Juris: Trump’s Executive Order on Refugees Violates the Establishment Clause

First, a few salient facts:

“There have been zero fatal terror attacks on U.S. soil since 1975 by immigrants from the seven Muslim-majority countries President Donald Trump targeted with immigration bans on Friday, further highlighting the needlessness and cruelty of the president’s executive order. [….]

The order, at the end of Trump’s first week as president, is an extension of a presidential campaign in which Trump routinely stirred fears and peddled misinformation about Muslims in America. It also partially fulfills Trump’s 2015 call to ban all Muslims from entering the U.S.” [….] Christopher Mathias in The Huffington Post.

* * * From David Cole’s post, “We’ll See You in Court: Why Trump’s Executive Order on Refugees Violates the Establishment Clause,” at the Just Security blog (sans embedded links):

“According to the Supreme Court, ‘the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another,’ Larson v. Valente, 456 U.S. 228, 244 (1982). But that command is apparently not clear enough for President Donald Trump. On Friday he signed an Executive Order on refugees that imposes a selective ban on immigration from seven Muslim-majority countries, and at the same time establishes preferential treatment for refugees seeking asylum who are identified with ‘minority religions’ in their country of origin. In case there was any doubt about the latter provision’s intent, Trump told Christian Broadcast News that it was intended to give priority to ‘Christians’ seeking asylum over ‘Muslims.’

In both respects, the Executive Order violates the ‘clearest command of the Establishment Clause.’ First, as I developed in an earlier post, the Constitution bars the government from targeting Islam. One of the lowest of many low moments in Donald Trump’s presidential campaign was his December 2015 call for a ‘total and complete shutdown’ of Muslim immigration. The proposal treated as presumptively suspect a religion practiced by about 1.6 billion people worldwide, nearly a quarter of the globe’s population. Trump soon retreated to talk of ‘extreme vetting,’ but never gave up his focus on the religion of Islam. Friday’s executive orders are of a piece with his many anti-Muslim campaign promises.

As I wrote earlier, one of the critical questions with respect to the validity of executive action challenged under the Establishment Clause is its intent and effect; if intended to disfavor a particular religion, it violates the Establishment Clause. Here, there is copious ‘smoking gun’ evidence that the President intended to disfavor Muslims on the basis of their religion. It includes:

On December 7, 2015, the Trump campaign issued a press release stating that ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.’
In July 2016, he effectively admitted that his revamping of the proposal was designed to target Muslims without expressly saying so. In an interview on ‘Meet the Press: with NBC’s Chuck Todd,’ Trump said he would target immigrants from certain countries, but resisted the suggestion that this was a retreat from his proposal to target Muslims. ‘I actually don’t think it’s a rollback. In fact, you could say it’s an expansion…. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.’
In November 2015, Trump told NBC News he ‘would certainly implement’ a database to track Muslims in the United States … ‘I would certainly implement that. Absolutely.’ Would Muslims be legally required to register? ‘They have to be — they have to be,’ Trump replied.
In March 2016, Trump said, ‘Frankly, look, we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.’

Nor is this mere campaign rhetoric. In signing the executive order on Friday, Trump pledged to ‘keep radical Islamic terrorists out of the United States of America.’ Not ‘terrorists.’ Not ‘radical terrorists.’ But only ‘radical Islamic terrorists.’ Of course we should be keeping terrorists out, but why limit our concern to those of one faith?

Second, the flipside of the order, equally invalid, is that it is intended, as Trump candidly admitted on Christian Broadcast News, to favor Christians fleeing persecution over others. Here, too, Trump has violated the Establishment Clause’s ‘clearest command.’ Christians suffering persecution deserve asylum, but so do Muslims suffering persecution, and Buddhists, and Jews, and Sikhs, and Zoroastrians. There is no legitimate reason to favor Christians over all others who are persecuted for their beliefs.” [….]

The rest of this enlightening and urgent post is here.

Some relevant titles:

Cole, David. Justice at War: The Men and Ideas that Shaped America’s War on Terror. New York: The New York Review of Books, 2008.
Cole, David. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. New York: The New Press, 2003.
Cole, David and James X. Dempsey. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. New York: The New Press, 2002.
Cole, David and Jules Lobel. Less Safe, Less Free: Why America is Losing the War on Terror. New York: The New Press, 2009.