Under the Constitution, the government never can assume that a person is more dangerous because of his or her religion or race or national origin. President Donald Trump’s travel ban, imposed by an executive order on Jan. 27, violates this basic constitutional principle by presuming greater danger because individuals are Muslims from specific countries. That is why virtually every court to consider the travel ban, including the U.S. Court of Appeals for the Ninth Circuit, said that it is very likely unconstitutional and has enjoined it.
President Trump’s executive order suspends the entry of refugees into the United States for 120 days. The order also indefinitely stops the admission of Syrian refugees and for 90 days bars individuals from entering the United States from seven predominately Muslim countries: Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. However, the president said that religious minorities in these countries, notably Christians, would be eligible for admission.
There are enormous legal problems with this order. As written, it prevents entry into the country even by those with the legal right to be in the United States. For example, longtime lawful permanent residents with green cards who happened to be outside the United States on Jan. 27 were kept from returning. Those with proper visas from those countries could not enter the United States. The president has no authority to exclude those who have the legal right to be present.
Federal law explicitly prohibits exactly the discrimination based on nationality and place of residence that is imposed by Trump’s executive order. The Immigration and Nationality Act of 1965 explicitly says that no person can be “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.” This supersedes an earlier statute, from 1952, that President Trump relies on, which gave the president broad authority to regulate immigration and exclude individuals.
Moreover, the Trump policy is unconstitutional discrimination based on religion. The U.S. Supreme Court repeatedly has said that above all, the First Amendment’s religion clauses forbid the government from favoring some religions over others. Although Trump’s executive order does not expressly exclude Muslims, that was unquestionably its purpose and its effect as it bans refugees from predominately Muslim countries while creating an exception for minority religions in these countries. In fact, Trump adviser Rudy Giuliani said on Fox News that the president’s goal was to create a Muslim ban. Trump told Christian Broadcast News that he intended to give priority to Christians seeking asylum over Muslims.
The Trump order is unnecessary to protect us from terrorism. There is no indication that refugees pose a terrorist threat or that the existing, intensive screening procedures before admission to the United States are inadequate. Syrian refugees in the United States have not been linked to any terrorist acts. The five million Syrian refugees are fleeing the violence of a civil war and the horrors created by Syrian dictator Bashar al-Assad and the terrorism of ISIS.
Perhaps what is most disturbing is that the lawyers for President Trump argued to the Ninth Circuit that the president’s decisions as to matters of immigration are unreviewable by any court. The court forcefully rejected that claim. The judges wrote: “[T]he government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions contravene constitutional rights and protections. … There is no precedent to support this claimed unreviewability, which runs counter to the fundamental structure of our constitutional democracy.”
In 1803, in Marbury v. Madison, the Supreme Court ruled that courts can review the actions of Congress and the president to ensure their compliance with the Constitution. Chief Justice John Marshall explained that the Constitution exists to limit government power and its limits are meaningless unless they are enforced. The court held, and it has been the law ever since, that the judiciary can review the constitutionality of presidential and congressional actions. President Trump’s position is at odds with this long established principle of American government and with the very idea of checks and balances that is at the core of our constitutional system.
The Ninth Circuit’s decision, and those of federal courts around the country, thus reaffirm one of the most basic principles of the rule of law: No one, not even the president, is above the law.
Erwin Chemerinsky is dean of the UC Irvine School of Law.
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