President Donald Trump’s executive order temporarily suspending the U.S. refugee program and barring immigrants from seven majority-Muslim nations is unlikely to be defeated on religious discrimination grounds, constitutional law experts told TPM Monday.
While they said Trump’s order will have a disproportionately negative impact on Muslim refugees and immigrants, the experts argued the wording of the order, as well as the broad authority historically vested in the executive branch on immigration policy, renders it difficult to successfully argue that the order explicitly discriminates against Muslims.
“It’s not a slam dunk,” Stephen Wermiel, professor of constitutional law at American University Washington College of Law, told TPM in a phone interview. “The order doesn’t specifically ban Muslims; it’s not the same thing that Trump talked about during the campaign. Because it identifies people based on country of origin rather than their specific religion, it’s less obviously religious discrimination than what he discussed previously.”
Wermiel pointed out that any court challenge would require lawyers to find a plaintiff who is a member of a majority religion from one of the seven majority-Muslim countries covered by the order—Yemen, Somalia, Syria, Iraq, Iran, Sudan and Libya—who can show that he or she was barred entry specifically because of their religious affiliation.
“They need to be able to prove they were letting in similarly situated people from minority religions but not from majority religions,” he said. “It’s not that its not a compelling claim but it may be a hard claim to prove.”
Both the American Civil Liberties Union (ACLU) and Council on American Islamic Relations (CAIR) have argued that the order, which bars Syrian refugees indefinitely, all other refugees for a period of 120 days, and all travelers from the seven majority-Muslim countries for 90 days, amounts to a Muslim ban.
CAIR on Monday filed a lawsuit in federal court in Virginia arguing that Trump’s order is unconstitutional because it “favored and disfavored groups based on their faith.”
ACLU legal director David Cole said his group is preparing an Establishment Clause challenge to the order that will argue there is “copious ‘smoking gun’ evidence that the president intends to disfavor Muslims on the basis of their religion” by way of the order.
That evidence includes Trump’s since-dialed-back campaign promise to establish a “total and complete shutdown of Muslims entering the United States” and repeated claims that the U.S. was “having problems with Muslims coming into the country.” Despite the administration’s insistence that the order is “not a Muslim ban,” former New York City mayor and Trump ally Rudy Giuliani told Fox News on Sunday that the order came about after Trump requested a path to enact a Muslim ban “legally.”
The order also give priority to refugee claims made by applicants belonging to a “minority religion” in their home country. Trump made clear which religion he was referring to in a Friday interview with Christian Broadcast News, saying “Christians” seeking asylum would receive preference over “Muslims.”
Some legal scholars say that taken collectively, that is all solid evidence of discrimination.
“Viewing the executive order against the background that preceded it, the magnitude of the difference between what it seeks to accomplish and what effect it has and the way that it’s phrased demonstrates discrimination on religious grounds,” Harvard Law School professor Gerald Neuman told TPM.
Referencing the Trump team’s defense that many predominantly Muslim countries are not included on the list, Neuman added that the order must be considered in its context.
“The fact that it doesn’t ban every Muslim in the world doesn’t mean its not discriminatory against Muslims,” he said. “It’s well established in the law of discrimination that you can discriminate against a subset of a group.”
But like the other legal experts surveyed, Neuman said legal challenges to the ban were more likely to succeed on a statutory, not a constitutional, basis.
“Traditionally, a lot of deference has been given to the political branch in matters of immigration,” Cornell Law constitutional law professor Michael Dorf told TPM. “This is why I think the statutory claims are more likely to succeed because the courts can say we’re not substituting our judgment for that of the political branches. Instead, this is a question of the executive violating the will of the legislature.”
Dorf said there was still a “possibility” of a court striking down the order on the argument that it was “subjectively” intended to have a religiously discriminatory impact.
“Given what Trump has repeatedly said, what Giuliani has said, there is at least a prima facie case” that Muslims were the intended target, he added.
Four federal judges issued stays on the ban over the weekend, while numerous legal challenges to the order are already being set in motion. A group of 16 state attorneys general vowed Sunday to “use all the tools of our offices to fight this unconstitutional order,” and Washington state Attorney General Bob Ferguson on Monday filed a federal lawsuit seeking an immediate halt to the order’s implementation.