What Am I Missing on This Trump Muslim Ban?


Trump’s executive order states:

Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.  Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

It seems as if the order prioritizes one religion over another.  Isn’t this considered a religious test? Does the establishment clause apply to the entrance of immigrants?   Why didn’t the Solicitor General of Washington make this argument?

Honest questions here.  What am I missing?

5 thoughts on “What Am I Missing on This Trump Muslim Ban?

  1. Thanks for the thought provoking question, John.

    It seems to me that the “religious test” issue has always had to do with holding first federal office and then any “public office”. (See here: http://www.heritage.org/constitution/#!/articles/6/essays/135/religious-test)

    Is there a limit on Presidential power to apply a religious test to immigrants? I do not know.

    What if, for example, the ancient religion of Molech, including its ritual child sacrifices, were to come into vogue somewhere else in the world? Would the President be required to admit its adherents based on this too broad ban on religious tests? I would think not, but then, what is the standard?

    Thanks again.


  2. I think the executive order is, at best, entirely clumsy.

    For the sake of argument, however, let’s presume that a president decides that Muslim terrorism — not terrorism in general but Al Qaeda, ISIS, etc. terrorism — is a significant national security risk. Then said president concludes that immigrants from particular Muslim-majority nations are most likely to import said security risk into the United States. So said president bans immigration from those countries.

    I don’t think the above scenario — which, if one extracts campaign rhetoric — is an unconstitutional action. In fact, I think one would argue that to not at least impose a high degree of scrutiny on visa applicants and holders from those countries would be a dereliction of executive duty.

    I don’t think Trump’s executive order is intelligent or makes very much sense at all. In fact, I think it’s especially egregious to ban all immigration from a nation that we invaded and with which we now have lots of ties (economic, family, and otherwise). And why not Saudi Arabia? But there’s a big difference between unwise and unconstitutional. (And I’m not denying the role of anti-Muslim bigotry in everything that swirls around it, just suggesting that the constitutional issues are not as clear cut as you suggest).

    I would think the current SCOTUS would split 4-4 on the issue and leave the federal appeals court ruling in place. But with one more conservative justice…


  3. John, if there is no religious test, and if ISIS is in some sense Islamic, then you make no distinction between good and bad Islam? Your question invites another: when did progressives adopt Islam as a liberal religion?


  4. Washington and Minnesota are challenging the religious prioritization provision of the EO. See, for instance, pages 18-20 of their reply brief at the Ninth Circuit.

    That aspect of the EO isn’t their best target, though, for at least a few reasons I can imagine–three in particular. First, the states have a much stronger standing argument when it comes to the traditional visa holders and visa applicants who are being (or have been) hired or admitted to their public universities, hospitals, etc. In other words, suing to protect the due process and equal protection rights of current and prospective students and employees from the seven identified countries is easier than suing on behalf of potential future refugees who might or might not even enter Washington or Minnesota.

    Second, the plenary power doctrine, which recognizes the Legislative Branch’s vast discretion to write immigration law, and the Executive Branch’s vast discretion to implement it, presents a serious obstacle to any Establishment or Free Exercise Clause challenge here. In short, the courts are generally reluctant to invalidate immigration policies or determinations applied to new foreign national applicants abroad, even when those actions might be unconstitutional if taken with respect to U.S. citizens persons inside the U.S.

    And finally, the religious persecution text in the EO, which is not limited to the seven majority Muslim countries from which the administration is trying to suspend visas, is at least arguably neutral as to religion. We all know what the signer really wants to do, of course–Trump assured us he hopes to prioritize Christians and reduce or halt Muslim refugee resettlement–but on its face, the EO’s language would in theory work as well for, say, minority Muslims being persecuted in a majority Christian country. And U.S. immigration law already does recognize religion as a factor in certain asylum and refugee contexts. There may be an Establish or Free Exercise Clause violation lurking here or down the road, but I don’t discern an easy victory for challengers at this stage, especially given “to the extent permitted by law” qualifier.


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