It's a Muslim ban, and it's unconstitutional

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Story highlights

  • An order from President Trump restricts the rights of people from 7 Muslim-majority countries in entering the United States
  • Page Pate: This order, which unfairly targets a particular religious group -- namely Muslims -- violates the Constitution

Page Pate is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta, and the former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate. The opinions expressed in this commentary are his.

(CNN)Before he was elected President, Donald Trump made it clear he wanted to keep Muslims from entering the United States. In fact, he called for a "total and complete shutdown of Muslims entering the United States," a stance he slightly modified during the campaign.

Now that he is President, it looks like Trump is trying to accomplish the initial shutdown he called for on the campaign trail.
On January 27, Trump signed an executive order that significantly restricts the rights of people from seven Muslim-majority countries from entering the United States. This order is a thinly veiled attempt to discriminate against Muslims. Because the policy reflected in this order targets a particular religious group, even though it doesn't cover every country in which Muslims predominate, it is unconstitutional.
Page Pate

The executive order

It has been called a "travel ban," but the official title of the executive order signed by Trump is "Protecting the Nation from Foreign Terrorist Entry into the United States."
That sounds like a good thing, right? Keeping America safe is one of the most important priorities of our government. But the actual policy and practice behind this order is inconsistent with its stated purpose.
Several states, and many private individuals, have challenged the order on various grounds. Their arguments are different, but almost all of them involve the same core issues: Is this executive order an attempt to discriminate against Muslims? And, if it is, can this possibly be legal?

Is this a ban on Muslims?

As the White House has pointed out numerous times in the past few days, there is nothing in the order that specifically bans Muslims from entering the country. It is true the order does not mention Muslims by name. It is also true that most Muslims around the world are not directly affected by this order. And the restrictions in this order seem to apply to anyone who is a resident of the seven named countries, whether they are Muslim or not.
If it was just about the text of the order, it would be difficult to call it unconstitutional. But it's not only what's in the order that's important; it's the intent of the order and how it's being carried out.
Both as a candidate and as President, Trump has said a lot about immigration that shows his real intentions. As a candidate, Trump called for a "ban on Muslims." He repeated this idea often, and in a slightly different way several times during the campaign.
After the election, Rudy Giuliani, who is close to Trump and was a strong supporter of his campaign, also expressed Trump's desire to ban Muslims, but to make it appear legal. And when the executive order was signed, there was a focus not just on terrorists, but "Islamic" terrorists. Perhaps even more revealing, Trump made clear shortly after signing the order that he was going to "help" Christians by giving them preference in obtaining permission to enter the country.
Based on his own words, and the initial actions of the executive branch in applying this order to legal permanent residents, it's clear what Trump wants to do. He wants to stop Muslims from coming into the country. If that's his true intent, then this order is effectively a "Muslim ban."

Is a ban on Muslims legal?

That brings us to the second question: Can Trump actually ban Muslims from coming into the United States? That may seem like a simple question, but it's really not. There is no clear ruling from any court that such a ban would be legal or illegal. The issue boils down to a question of power: How far can a President go in limiting who is allowed to enter the United States?
There is no dispute the President has a tremendous amount of discretion in determining who can enter the United States. The President is given this authority through the immigration laws passed by Congress and the President's own constitutional power to protect national security.
Because the President has this power, Trump's lawyers have argued the President has every right, indeed a responsibility, to issue an order like this to protect the country from terrorists.
If this order just protected us from "terrorists," then it would be perfectly legal. But the order identifies "terrorists" as people who are residents of these seven countries. Putting aside the question of whether people from these countries are all terrorists, or even mostly terrorists, singling out this group of countries suggests the order is focused on more than just national security, and that's where it runs into trouble.

The Immigration and Nationality Act

There are a variety of different legal challenges to this order. Some of them rely on the Constitution; some rely on laws passed by Congress. One argument is that the order violates the Immigration and Nationality Act, or INA, a law passed by Congress to deal with immigration into the United States.
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One part of the INA prohibits discrimination based on a person's race, sex, nationality, place of birth or place of residence. This provision seems to clearly prevent the type of discrimination called for by the express terms of the order. But there is another provision in the INA that gives the President the power to deny any person entry into the country if the President determines the person's presence would be "detrimental to the interests of the United States." This provision appears to allow the President to discriminate on any basis, as long as the group being discriminated against presents a danger to the country.

The constitutional arguments

There are three basic constitutional arguments against the executive order: it violates the due process rights of noncitizens, it denies equal protection to noncitizens who are Muslim and it promotes one religion over another.
The due process argument is based on the Fifth Amendment to the United States Constitution. Among other things, this amendment protects people from being deprived of their rights without "due process of law." The states' argument here is that taking legal status away from people who have already been approved for entry into the country without giving them a fair hearing is a violation of their rights.
Of course, this argument only works for people who have the right to be here. For people who are not legally in this country, the argument is a little different. They may be entitled to due process to the extent they have a chance to be considered for entry into the United States as a refugee or asylum-seeker. That's a process created by Congress, and one that shouldn't be arbitrarily taken away.
But this issue is not just about the rights of immigrants and refugees. There is also a very compelling argument that this order violates the constitutional guarantees of equal protection and religious freedom. And those rights affect us all, citizens and noncitizens.
In my opinion, a "Muslim ban" would be unconstitutional in two ways. First, it would be a violation of the Fifth Amendment guarantee of equal protection in that it treats a specific class of people (Muslims from the seven countries) differently than other noncitizens. Second, the order would violate the First Amendment's Establishment Clause by giving preference to one religion over another.
Like due process, the concept of equal protection is based on the Fifth Amendment. Equal protection prevents the government from unfairly discriminating against any person based on his or her race, national origin or religion. These protections arguably apply to people who are legally here, and to people who show up at the border or an airport trying to gain entry into the United States.
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To be clear, the doctrine of equal protection does not prevent all discrimination. There may be certain situations where the only way to accomplish a legitimate and necessary governmental function is to discriminate in some way. But if that happens, the government had better be able to show a really good reason for it and provide strong evidence that there is no other viable alternative. I don't think they have done that here.
The other reason I think this order is unconstitutional is because it is likely to violate the Establishment Clause of the First Amendment if it is enforced in the way Trump and his surrogates have promised.
The "Establishment Clause" is found in the First Amendment: "Congress shall make no law respecting an establishment of religion." This clause has been interpreted to cover laws passed by Congress and any official action by the government, and that would include executive orders. "Establishment" doesn't just mean the creation of an official state religion. It also means the government can't give preference (in any law, regulation or policy) to one religion over another.
In this case, the Establishment Clause argument is based on President Trump's comments about targeting Muslims and giving preference to Christians. The argument also draws support from the language in the executive order, specifically Section 5(b), which gives preference to religious minorities in refugee programs.

Do states have a right to challenge this order?

The courts may never reach the constitutional issues if they decide these states do not have "standing" to sue the federal government over this order. To be able to file a lawsuit in court, you must have legal standing. Having "standing" basically means having the right to sue. A state can't simply sue the federal government because certain state officials disagree with a federal law or policy. A state has to point to a specific harm or injury the law or policy is causing that state.
In this case, the states argue that they have standing because immigration affects their economy in various ways. They also argue the order affects the operation and reputation of state universities and other institutions.
In response, Trump's lawyers argue these states have no legal standing because the problems mentioned by the states are too speculative and, now that the White House has "clarified" that the order shouldn't apply to legal permanent residents, the states are not really suffering any recognizable financial or reputational harm.
I think this is a close call. In the Deferred Action for Parents of Americans, or DAPA, case, Texas, joined by several other states, sued the government over a federal order focused on immigration. Texas argued that implementation of this order would cost the state too much money. Texas won at the district and appellate level, though the Supreme Court never reached the merits of this argument.
In DAPA, Texas had a better standing argument than Washington and Minnesota do here. The economic harms were more specific and concrete. And, perhaps more importantly, if Washington and Minnesota can't include legal residents in their claims because the order doesn't apply to them, their standing argument is even weaker.
But judges don't like to leave major constitutional questions unanswered, and the only other way to challenge this order in court would be by individual lawsuits filed by the people who are directly affected by the order. That could quickly result in a patchwork of different cases and different rulings, and create even more confusion over the legality of this order.

Debate is a good thing

This debate, as messy as it may be, is a good thing for the country. Unless Trump administration officials decide to start ignoring court orders (which they have fortunately agreed to follow for now), there will be no constitutional crisis.
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As for Trump himself, he seems content just to use a series of tweets to insult the judge who disagreed with him. While that's certainly not very presidential, it really doesn't create any legal crisis. The judges will just ignore him, like many of the rest of us try to do.
Whatever the final decision, this important discussion in our courts and our communities will show the strength of the Constitution and the separation of powers. The fact that a single federal district judge can stop the actions of the President is a reflection of the principle that we are a nation built on the rule of law, not on the whims of a power-hungry man. We will soon see if that principle holds true.