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OpEdNews Op Eds    H3'ed 2/6/17

Though Blocked for Now, Trump's Unconstitutional Muslim Ban Deserves Total Destruction

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On January 28, US District Judge Thomas Zilly of the Western District of Washington granted a stay of removal and enjoined respondents Trump et al, from removing John Does I and I from the US pending a hearing on February 3.

On January 29, US District Judge Allison Burroughs and US Magistrate Judge Judith Gail Dein of the District of Massachusetts found that Iranian petitioners, a married couple, both of whom are engineering professors at University of Massachusetts-Dartmouth, had a strong likelihood of success in establishing the detention/and or removal of them and others similarly situated would violate Due Process and Equal Protection.

The two judges also concluded petitioners were likely to suffer irreparable harm. They issued a temporary restraining order, preventing respondents Trump et al, from detaining or removing for seven days individuals with refugee applications approved by US Citizenship and Immigration Services as part of the US Refugee Admissions Program. Holders of valid immigrant and non-immigrant visas, lawful permanent residents,] and others from the seven listed countries who, absent the EO, would be legally authorized to enter the US, were also protected from exclusion.

On January 31, US District Judge Andre Birotte in Los Angeles ruled that the government must permit immigrants from the seven listed nations who have initial preclearance for legal residency to enter the US. Birotte ordered US officials to refrain from "removing, detaining or blocking the entry of [anyone] ... with a valid immigrant visa" arriving from one of the seven countries.

Attorney Julie Ann Goldberg had filed the Los Angeles case on behalf of more than 24 plaintiffs of Yemeni descent, including US citizens. Over 200 people holding immigrant visas who had left Yemen, and are either related to US citizens or lawful permanent residents, were stranded in Djibouti and prevented from flying to the US.

Meanwhile, on February 1, a counsel to the president informed government agencies that the EO does not apply to some categories of immigrants. They include lawful permanent residents, Iraqis who worked for the US government in jobs such as interpreters and people with dual nationality when entering the US with a passport from a country other than one of the forbidden seven.

On February 3, US District Judge James Robart in Seattle issued a temporary nationwide restraining order halting the EO's ban on citizens of the seven countries from entering the US, and the limitations on accepting refugees, including any action that "purports to prioritize the refugee claims of certain religious minorities." He found that the states met their burden of showing they face "immediate and irreparable injury." The judge concluded, "The executive order adversely affects the states' residents in areas of employment, education, business, family relations and freedom to travel. These harms are significant and ongoing." Judge Robart ruled the EO would be stopped nationwide, effective immediately.

The EO Violates the Establishment Clause of the First Amendment

The strongest constitutional argument for overturning the EO is that it violates the Establishment Clause of the First Amendment.

The Supreme Court has held "the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." The EO "imposes a selective ban on immigration from seven Muslim-majority countries as well as establishes preferential treatment for refugees seeking asylum who are identified with 'minority religions' in their country of origin," ACLU National Legal Director David Cole wrote in Just Security. Cole cited Trump's statement on Christian Broadcast News that the intent of his EO was to prioritize "Christians" seeking asylum over "Muslims."

Erwin Chemerinsky, dean of UC Irvine School of Law, observed in the Los Angeles Times, "Although Trump's order does not expressly exclude Muslims, that is its purpose and effect as it bars entry to individuals from predominantly Muslim countries."

When Trump signed the EO, Cole noted, he "pledged to 'keep radical Islamic terrorists out of the US.' Not 'terrorists'; not 'radical terrorists.' But only 'radical Islamic terrorists.'" Cole concluded that Trump "has violated the Establishments Clause's 'clearest command'" as "[T]here is no legitimate reason to favor Christians over all others who are persecuted for their beliefs."

The EO Violates the Due Process Clause of the Fifth Amendment

Procedural due process forbids the government from depriving an individual of life, liberty or property without due process of law. The US government is obligated to hear the asylum claims of noncitizens who arrive at US borders and ports of entry. The Immigration and Nationality Act provides, "Any alien who is physically present in the US or who arrives in the US ... irrespective of such alien's status, may apply for asylum ..." They must be afforded an opportunity to apply for asylum or other forms of humanitarian protection and be promptly received and processed by US authorities. The Trump administration's denial of an opportunity to apply for asylum violates procedural due process.

The EO Violates the Equal Protection Clause of the Fourteenth Amendment

The Equal Protection Clause prohibits the government from "deny[ing] to any person within its jurisdiction the equal protection of laws." An executive order that has the "purpose and effect of disapproval of a class recognized and protected by state law" violates the Equal Protection Clause, the Supreme Court held in US v. Windsor.

Muslim immigrants and non-Muslim immigrants from the seven listed countries are two separate classes of people for Equal Protection purposes. Unequal treatment of different groups based on religion, which is a suspect class, are subjected to strict scrutiny and thus there must be a compelling state interest to justify the disparate treatment. None of the 9/11 hijackers came from any of the seven countries. There have been no fatal terrorist attacks on US soil by anyone from those countries. Therefore, there is no compelling state interest for treating the two classes differently. This is particularly true in light of Trump's statements that his order would prioritize "Christians" seeking asylum over "Muslims."

As Corey Brettschneider wrote for Politico, the Court drew a clear connection between the protection of religious liberty and the Equal Protection Clause's prohibition of invidious discrimination in Church of Lukumi Babalu Aye v. City of Hialeah.

The EO Violates the Take Care Clause, Art. II, Sec. 3

Trump's EO violates the Take Care Clause of the Constitution, according to Jeanne Mirer, president of the International Association of Democratic Lawyers. "This provision requires the President to 'take care' that the laws of the country are faithfully executed," Mirer wrote on Facebook. "The EO on immigration violates this clause because it requires government officials to violate various laws as well as human rights treaties we have ratified. He is also violating it by appointing people who openly oppose the laws they are being asked to enforce. Impeachable offense," she added.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)

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