Issuing A New Travel Ban Might Not Be Enough To Save It

The Administration will have difficulty escaping the taint of discrimination that attaches to the original order.

Stung by last month’s Ninth Circuit decision that barred enforcement of the first travel ban, President Trump issued a new order yesterday. The obvious goal of this strategy is to begin anew with an order that does not suffer from the initial order’s constitutional defects. But it is far from clear that the revised order will save it from the constitutional defects that plagued the first version.

The Administration defended the original order in the court of appeals by arguing that its language doesn’t discriminate against Muslims. But the court noted that the President previously called for a “Muslim Ban,” and that he and other officials and allies have publicly suggested that the order is designed to fulfill that promise. The court didn’t resolve the order’s legality under the Constitution’s Religion Clauses, but it emphasized that the challengers “raise[d] serious allegations and present[ed] significant constitutional questions.”

This is a problem for the Administration because the government’s motive is relevant under the Religion Clauses. Indeed, a purpose to discriminate on the basis of religion can doom a policy that is otherwise religiously neutral on its face. More important for present purposes, when courts assess the government’s motive in adopting a revised policy, they consider not only the circumstances surrounding the adoption of the new policy, but also the background against which the change occurred. The Administration will have difficulty escaping the taint of discrimination that attaches to the original order.

Indeed, a purpose to discriminate on the basis of religion can doom a policy that is otherwise religiously neutral on its face.

Consider McCreary County v. ACLU of Kentucky, a 2005 Supreme Court decision that addressed the display of the Ten Commandments in a courthouse. The original display included only a copy of the Commandments. After lawsuits challenged the display, the county added to the display eight documents, all with religious themes. But this change only made matters worse under the Establishment Clause by emphasizing the county’s religious purpose in displaying the Commandments. After a court ordered the display removed, the county again revised the display. This time, it replaced the other religious documents with secular items such as the Declaration of Independence and the lyrics of the Star Spangled Banner, but it kept the Commandments as the centerpiece.

The county defended the new display by arguing that its purpose was to educate the public about the “foundation[s] of our system of law and government.” The county urged the court to consider only the third display, and only the county’s statements and actions in adopting it, in assessing the government’s purpose. The Supreme Court rejected this argument, noting that “the world is not made brand new every morning.” The context and background made clear that the display was designed to endorse the religious content of the Commandments, and thus the display, even in its revised version, was unconstitutional.

In other words, the Administration cannot save the travel ban by simply redrafting it in seemingly religion-neutral terms—as the President put it, to “tailor the order to [the court’s] decision and get just about everything, in some ways, more.” If the Administration’s implicit goal is to achieve the same forbidden purpose—in this case, to exclude persons from entry to the United States based on their religion—then issuing a new order will not cure the constitutional defect.

The Administration likely will point to the fact that the new order no longer applies to the entry of persons from Iraq, even though that country is majority Muslim, and removes the preference for adherents of minority religions in the covered countries, which was one important source of the original order’s constitutional infirmity. But these features of the new order do not change the fact that the countries singled out for a ban on entry are all majority Muslim. Indeed, the President sent a fundraising email immediately after signing the order boasting that it restricts “immigration from six countries compromised by radical Islamic terrorism,” suggesting that religion continues to be the Administration’s main proxy for dangerousness.

This is not likely to be the only time that the President will face a choice between the preferences of his supporters and the Constitution’s demands.

Similarly, the fact that it no longer gives a preference for Christians in the covered countries does not necessarily undermine the conclusion that the policy is motivated by a discriminatory purpose. Consider a simple analogy. A prejudiced local police chief secretly wants to arrest more African-American citizens for drug crimes. Rather than announcing that fact, he orders his officers to pull over many more cars in routine traffic stops, but only in some of the majority-black neighborhoods in the city, with the hope of finding evidence of crime. This policy inevitably will result in a disproportionate number of African-American motorists pulled over and potentially arrested. The fact that some African-American drivers in other neighborhoods will not be stopped, or that some white motorists in the targeted neighborhood will be stopped, does not eliminate the discriminatory purpose behind the policy. As long as the policy is designed to use race as a proxy for criminality, it is impermissible. In other words, if the President’s purpose is to exclude persons because of their religion—as his fundraising email and other comments suggest—it doesn’t matter that the policy does not explicitly give priority to Christians or excludes immigrants from Iraq. The President’s order still imposes substantially stricter limits on Muslims’ entry into the country, simply by virtue of their country of origin. These are precisely the features of the original policy that gave rise to the inference of religious discrimination, and thus made it constitutionally vulnerable.

The only way for the Administration to issue a new, soundly constitutional policy would have been to divorce it from the very features that made the policy attractive to its supporters in the first place. In other words, the policy should not impose an indiscriminate obstacle to all people from selected Muslim-majority countries, but instead should tailor those obstacles to those individuals from any country who pose a real threat to national security. Given the Department of Homeland Security’s analysis showing that country of origin is a poor indicator of terrorist threat, the President’s choice to focus on these countries (now minus Iraq) suggests that the new policy continues to be an indiscriminate obstacle to Muslims’ entry.

This is not likely to be the only time that the President will face a choice between the preferences of his supporters and the Constitution’s demands. Given the President’s approach so far, it was not difficult to predict which he would choose.

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