January 03, 2017
This past weekend, the legal issues fought in courts across the US have dealt with the authority of the government to detain and deport people arriving in the US with visas, but in the long run there will be a battle in the courts over whether President Trump can ban Muslims from a handful of countries.
The weekend fight was over the government inconveniencing people to whom it had issued visas.
The longer legal fight is likely to turn on questions of a president’s authority to control America’s borders and on whether the new immigration policy unconstitutionally discriminates against Muslims.
The Council on American-Islamic Relations (CAIR) has filed a lawsuit arguing the ban violates the First Amendment’s bar on preferential treatment for a religion — by appearing to favor Christian over Muslim refugees.
There is no ban on all Muslims entering the US, because the ban applies to only seven of the 51 majority-Muslim countries. But the ban only applies to Muslims because it exempts members of minority faiths in those seven countries.
“While this ban does not apply to all Muslims, it only applies to Muslims,” said Gadir Abbas, one of the CAIR lawyers. “That type of religious gerrymandering is illegal.”
The court cases are only beginning, and legal experts are divided as to whether courts will find Trump’s action legal.
Federal law gives the president unconstrained power to suspend the entry of “any class of aliens” if he determines their entry “would be detrimental to the interests of the United States.” But another law forbids discrimination against the issuance of an immigrant visa based on a person’s nationality or place of birth. That law may turn out to be key—not constitutional rights because the US Constitution doesn’t apply to non-Americans, as the Islamic Republic has often pointed out.
“Historically, the courts have not tried to regulate the executive branch’s determination as to who’s allowed to enter the country,” said Eric Posner, a University of Chicago law professor. “The immigration statute gives the president very broad discretion to block people from entering the country,” including for national security reasons.
Posner said he expected judges to give the policy more deference if the administration can show that it was done to protect national security, rather than for political reasons.
He also said courts could find it compelling that the executive order it does not cover all Muslims from all countries. “The fact that he lets in Muslims from Saudi Arabia tends to undermine the theory that he’s acting out of animus,” Posner said.
On the other hand, the fact that Trump is allowing in Muslims from Saudi Arabia and Pakistan, major sources of terrorists who have attacked Americans, could be used to argue that the ban is not based on national security.
Courts have a long history of upholding portions of immigration law that discriminate on the basis of race and nationality, Peter J. Spiro, a law professor at Temple University, told The Associated Press. As far back as 1889 the Supreme Court upheld the exclusion of Chinese laborers. Of course, back then schools segregated by race were illegal. The law has changed a lot since then.
The Supreme Court ruled in 1953—the year before it outlawed segregated schools—that a non-citizen trying to enter the US has no right under the Constitution to challenge the government’s decision to deny entry. That case involved a legal permanent resident of the United States who traveled abroad to Hungary for 19 months. He was denied re-entry because the government said he posed a threat to national security.
Adam Cox, a law professor at New York University, said it’s historically been challenging to prove that a policy was enacted with the purpose of disadvantaging a particular religion or race, often requiring “smoking gun evidence of the state of mind of the people” behind it. He said that though courts in the past have sustained discriminatory policies, it could be possible for a judge in this instance to “pierce the veil” and decide that the executive order was motivated by animus.
“If a court gets to the point where it sees this as open discrimination on the basis of religion or race, at that point I would part company with people who argue that simply by virtue of this being an immigration policy, it is insulated from constitutional attack,” Cox said.
It’s also possible that federal judges could be more likely to push back in light of the massive public backlash over Trump’s ban, Spiro said. “If there’s going to be a case in which a constitutional challenge has some chance of succeeding, this is it,” he said.