Banning a whole class of individuals based on their nationality is not only hateful, but legal professionals around the globe agree Trump’s immigration ban has a number of constitutional and international human rights issues to overcome. The immigration ban not only restricts access into the United States for those from select black-listed countries, but it temporarily stops entrance for refugees seeking political asylum and permanently stops entrance for Syrian refugees.
First Amendment
The Establishment Clause of the 1st Amendment guarantees religious equality and restricts the government from establishing (or supporting) any one particular religion. While Trump’s team insists the immigration ban is not a blanket ban targeting Muslims, it’s hard to refute that argument based on Trump’s previous campaign statements.
On its face, the text of the order doesn’t exclude Muslims, but the text of the ban does state priority is to be given to refugees of a minority religion. Since the ban affects 7 Muslim-majority nations, this language strongly indicates a preference for non-Muslim religions. I can’t stress enough how much this practice would be in direct contradiction to the establishment clause.
Fifth & Fourteenth Amendment
Trump’s executive order singles out individuals based on both their nationality and religion and encourages discriminatory visa processing procedures, all of which raise discrimination issues that violate due process rights.
Due Process rights under the 5th and 14th Amendment require fair treatment, both procedurally and substantively. Both the way the law pans out and the way the law is written matter. Not only must the government provide fair and sufficient notice before denying someone their life, liberty, and property, the government cannot enact laws it doesn’t have the authority to enact. While executive orders have been traditionally accepted, presidents don’t have the authority to enact laws that are discriminatory and contrary to the principles of the Constitution and laws of our nation.
Trump’s blanket ban provides no processes or procedures for denying entrance into the U.S., which left many stranded, including legal visa holders. There’s a strong argument those travelers were denied their procedural due process rights. They were given no notice or chance to make alternative travel plans. Attorneys scrambled to file writs of habeas corpus demanding that, as asylum seekers on U.S. soil, the government was required under the Immigration and Nationality Act to at least grant asylum hearings, something the order didn’t allow for.
U.N. Experts Say Ban Violates International Human Rights Obligations
In the midst of lawsuit upon lawsuit demanding a halt on the immigration ban for constitutional violations, a group of U.N. human rights experts have weighed in and say the United States is now in violation of its international human rights obligations. Under non-refoulement principles, the U.N. has long held that nations cannot expel or return a refugee to an area where their life or freedom are threatened.
Will the Ban Hold Up in Court?
After multiple lawsuits were filed, judges across the country issued injunctions blocking certain aspects of the executive order. The state of Washington filed suit on the order as a whole and U.S. District Judge James Robart blocked the order in its entirety. Although Trump appealed the decision, normal screening procedures commenced and will remain in effect until a decision is handed down.
Despite Trump’s offensive tweets that questioned Judge Robart’s opinion, Trump seems to be a minority on this one. Sixteen other state attorney generals have joined the lawsuit. Massachusetts, New York, Pennsylvania, California, Connecticut, Delaware, Illinois, Iowa, Maryland, Maine, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and the District of Columbia have filed a brief as “friends of the court” to argue against the ban. At least 127 tech companies have also filed briefs in opposition to the ban.
Trump cited a need to protect our nation from terrorist threats as the basis for the executive order, but it’s arguable the ban will do nothing to actually prevent future attacks. Media attention has focused on the fact that none of the most recent attacks in the U.S. have originated from the countries on Trump’s list. Certainly, national security interests can undoubtedly outweigh constitutional protections, but that should only be on a case-by-case basis and not a blanket ban based on nationality. While courts traditionally have given the executive branch great leeway when it comes to immigration policy, it’s not likely this particular order will pass constitutional muster.