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Trump’s new Muslim travel ban has same old problems

Friday, April 14, 2017

The Constitution’s promise of religious freedom is neither an accident of history nor a footnote. Trump’s anti-Muslim travel and refugee ban defies this founding wisdom.

President Donald Trump may have retooled his original, flawed travel ban, but — the shiny, new package still can’t disguise an affront to fundamental American values, values that stand for equality and reject discrimination. A U.S. District Judge in Hawaii issued a nationwide restraining order against it.

Next month, the U.S. Court of Appeals for the Ninth Circuit should conclude no differently when it hears arguments in Seattle in the Trump Administration’s appeal of the Hawaii ruling.

It is true that Trump’s new ban, unlike the old one, exempts green card holders and anyone approved for a visa, but its purported focus on nationality belies its true motives. Consistent with the president’s repeated campaign promises to bar Muslims from entering the country, the new executive order still discriminates based on religion, violating the Constitution.

The Constitution’s promise of religious freedom is neither an accident of history nor a footnote. Our nation’s founders noted that the Constitution’s guarantee of free exercise of religion and the structural prohibition on establishment of religion together help ensure, as James Madison said, that “[t]he Religion … of every man must be left to the conviction and conscience of every man.”

Trump’s anti-Muslim travel and refugee ban defies this founding wisdom, as demonstrated by Trump adviser and former New York City Mayor Rudy Giuliani’s telling of the story behind the White House’s efforts to write a Muslim ban into law. “I’ll tell you the whole history of it,” Giuliani told Fox News in January. “When [Trump] first announced it, he said ‘Muslim ban. He called me up, he said … ‘show me the right way to do it legally.’ ” Giuliani went on to say, “And what we did was we focused on, instead of religion, danger, areas of the world that create danger for us … perfectly legal, perfectly sensible.” In other words, an unconstitutional plan with only the slightest pretense to legality.

Giuliani is right, of course, about Trump’s original intent to institute a Muslim ban, since that purpose still blares on his campaign website. Trump’s claim that the prior ban was not designed to single out Muslims is simply not credible, and courts should continue to see through this obvious charade.

Meanwhile, the ban not only flouts our constitutional values, it also conflicts with federal laws passed by Congress that limit the president’s power to regulate immigration. The ban conflicts with the Immigration and Nationality Act of 1965, which categorically forbids discrimination based on “nationality, place of birth, or place of residence.

Even though the Act affords the president wide discretion to deny entry to any immigrant or nonimmigrant, it does not confer the power to issue a blanket exclusion against millions of people based on where they are from. The president is still obligated to abide by the Act’s nondiscrimination clause.

Finally, practical arguments also weigh against the revised ban. First among them: While the ban now singles out people from six instead of seven majority-Muslim countries (Iraq is no longer on the list), no American has been killed in a terrorist attack in decades, if ever, by immigrants from these countries. There is little reason to believe that people from Trump’s list of banned countries pose a greater danger to us.

As the Ninth Circuit Court of Appeals noted about the original ban, the administration has provided no evidence that the republic is at risk from immigrants from the targeted countries. Attorney General Jeff Sessions claimed that “more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the” FBI.

Trump, however, has cited no direct connection between any of those 300 people to the six countries on his list. That’s embarrassing enough, but just last month, a Department of Homeland Security intelligence draft report found that citizenship is an “unlikely indicator” of terrorism threats to the United States.

The bottom line? Religious intolerance masquerading as security is offensive to the principles on which the founders established this nation, and toward which we as a country must constantly strive. Trump’s new executive order draws little distinction between desperate refugees fleeing war and terrorism, and those responsible for war and terrorism. Real people have been hurt by Trump’s policy, and they will continue to be hurt unless the courts fulfill their core function to curb this shameful abuse of government power.