Why the Only Way to Fix the Muslim Ban Is Not to Have a Muslim Ban

Today President Trump signed a new Muslim ban. The new executive order is a major retreat by the administration, reflecting that, as courts around the country have recognized, the original order was deeply flawed and totally unjustified. But the fundamental truth of this new order, like the old one, remains unchanged: The president promised to ban Muslims from the United States, and the ban is his attempt to make good on that unconstitutional and indefensible goal.

President Trump’s intentions regarding the Muslim ban have been clear. In a statement “ON PREVENTING MUSLIM IMMIGRATION” posted to his campaign website — and still available on it as I write — then-candidate Trump called for “a total and complete shutdown of Muslims entering the United States.” Again and again, he refused to disown this proposal, expressing his opinion that “Islam hates us” and that there are “problems with Muslims coming into the country.”

Instead of abandoning this odious idea in response to widespread criticism and outrage, Mr. Trump candidly explained that he would change the wording of his proposal but not its substance. “I’m looking now at territories,” he said. “People were so upset when I used the word Muslim. Oh, you can’t use the word ‘Muslim.’ Remember this. And I’m okay with that, because I’m talking ‘territory’ instead of ‘Muslim.’” Asked about the Muslim ban, he said, “[C]all it whatever you want. We'll call it territories, okay?” Rudy Giuliani, former mayor of New York and advisor to the president, explained that Trump asked him to figure out “the right way” to establish the Muslim ban “legally” and that he and others settled on using the word “countries” to achieve Trump’s goal.

Tell Your Senators to Oppose Muslim ban 2.0

Sure enough, when the original Muslim ban was signed, it did not use the word “Muslim,” instead purporting to single people out for exclusion from the United States based on their nationality.

But it was no coincidence that the seven countries singled out were all overwhelmingly Muslim, and account for over 80 percent of Muslim refugees entering the United States from 2014 to 2016. It was no coincidence that the order carved out special treatment for certain religious minorities, which the president promptly explained was intended to help Christians. It was, in other words, no coincidence that the president who promised to ban Muslims from entering the United States signed an order that would ban a large number of Muslims from entering the United States.

Courts refused to buy this transparent attempt to avoid the bedrock American commitment to freedom and equality among religions. As the ACLU’s legal director, David Cole, explained before the original order was signed, a government action motivated by intent to discriminate on the basis of religion is unconstitutional even if the text of the order does not name a particular religion to be harmed. Courts across the country agreed. And, starting with a temporary stay won by the ACLU and its partners at the National Immigration Law Center, the International Refugee Assistance Project, and the Worker & Immigrant Rights Advocacy Clinic the night after the Muslim ban was signed, courts have halted the ban — including a unanimous panel of the Ninth Circuit Court of Appeals.

In response to these court losses, the president has now signed a new order. The order backtracks dramatically — exempting not only green card holders but all current visa holders, delaying the implementation of the order, and eliminating some of its glaringly illegal elements. These changes further undercut the administration’s weak national security case for the ban, already rebutted by the government’s own assessments and the administration’s repeated delays in issuing it — including putting off the new order to seek favorable media coverage.

Despite the substantial ground the president has now conceded in the face of his legal defeats, however, the heart of the order remains. The order still singles out individuals from six of the same overwhelmingly Muslim countries, as promised in the same repeated pledges to institute a Muslim ban, and does so purportedly based on the same debunked national security arguments. Indeed, any suggestion that this new order represents a clean break from the prior one or from the president’s comments is undercut by various statements coming out of the White House, describing the new order as “a revised policy” that would advance “the same basic policy outcome for the country.”

Ultimately, in other words, the most fundamental flaw of the Muslim ban remains the same: It is still a ban, signed by a president who promised to bar Muslims from entering the United States, motivated by an intent to discriminate against Muslims, and that overwhelmingly affects Muslims rather than those of other faiths. Neither the president’s original offer to “call it whatever you want,” nor this most recent attempt to “revise” the order while pursuing “the same basic policy,” alters that core truth.

The Supreme Court warned in McCreary County v. ACLU of Kentucky of “trivializing” the inquiry into the purposes of a law, rejecting a “naïve” suggestion that “any transparent claim” of nonreligious justifications is enough to save the law, regardless of its context and history. The courts and the American people are not so naïve. They have seen and will continue to see the order for what it is: an attempt to achieve President Trump’s promise to institute a Muslim ban.

The new order remains deeply unconstitutional and an affront to the principles on which this country was founded. We at the ACLU, and other organizations, advocates, states, cities, and individuals across the country, will keep fighting in courts and will keep voicing our opposition to this abhorrent religious discrimination.

To stand up to the rising tide of religious bigotry, our shareable Know Your Rights cards describe what to do if you or someone you know experiences anti-Muslim discrimination.

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Anonymous

ACLU would defend terrorists who want to get into the cabin of a airplane to "see what the captian does" but were denied because of the locked door.

Anonymous

Please don't lose sight of the fact that these Muslim bans don't make America safe. One of the things that does make America safe is good relations between law enforcement with Muslim American communities, not alienation.

AMS

My first question, are you a 501 c3 under the US IRS tax code? Your operation should be reviewed by the IRS at this time.

I think you should be forced to change your name, American" no longer applies for what you do.

Are there any suits, fights or efforts you make for religious bigotry against Christians? I would like to see this effort, please post articles!

conclusion, you don't fight for rights, you push an agenda and you fight for those groups you choose, you could care less about religious liberty or religious bigotry. Your agenda is promoting Islam and terrorists use the religion, in the name of religion, to terrorize and murder. We are not making up that fact. They tell us they are Muslims. Your best effort might go into speaking with their side, and asking them to be more peaceful.

Anonymous

Here you go: http://www.aclufightsforchristians.com/ Try doing some research, moron. And by the way Americans come in all (or zero) religions, so stop acting so persecuted.

Steve Barber

The ACLU is most definitely not a 501(c)(3) organization. However, the ACLU Foundation is, and it says restricts its activities to the boundaries those allowed under 501(c)(3). See https://www.aclupa.org/abouttheaclu/aclu-vs-aclu-foundation/

eric d. meyer

The ACLU must know that US courts will only decide upon the constitutionality of the EO, not Trump's campaign promises or his suspect motives, however malicious they may be. But the big problem is not Trump's anti-Muslim bias, obvious as that is; it's Trump's overstepping of Art. II executive authority to rule by diktat, circumventing the US Const. principle of checks and balances and sidestepping Congress and the US courts, under the false pretext of a state of martial law created by the spurious war on terror. Under the US Const., Art.II executive authority is restricted to enforcing the laws, not making them, or deciding if they are constitutional, and to carrying out wars, not declaring them, and Trump's claim that he is acting under Art.II authority cannot disguise this unconstitutional inflation of executive authority, which allows him to assume the false facade of commander-in-chief of an undeclared war, which doesn't really exist, at least not in America. But US Congress and US courts have abdicated their authority to place strict limits on executive authority, especially since US Congress authorized the executive branch to undertake the war on terror without Congressional oversight; and US courts have refused to challenge that executive authority, citing spurious national security/state secrets doctrine. The only effective way to challenge Trump's dictatorship is to challenge that unconstitutional inflation of executive authority, since otherwise Big Brother Trump can just right go on writing EOs forever, and go right on ruling by diktat, while all this endless litigation (fifteen years and counting) accomplishes nothing...

Steve Barber

Eric, well, the courts aren't limited to just reviewing the text of the EO. As stated in the article on this page, McCreary County v. ACLU of Kentucky held that a court may consider the context of the EO itself, not only its text. Whether courts will decide to apply McCreary to any challenge to the current EO is of course an open question at this point.

Anonymous

TRANSGENDER STATEMENT ❤️❤️❤️ People that identify as an APE and really believe they are an APE and even if a scientist agrees they truly FEEL like they are an APE are considered delusional. Yet a fat old PEDOPHILE just has to say he FEELS female and the ACLU and the ALT LEFT say he has the right to use public little girls locker rooms, SHOWERS and toilets. Title 9 says for education you cannot discriminate because of gender, no mention of toilets. NOT ONE SCIENTIST WILL SAY IF IT HAS A DICK THEY ARE FEMALE. NOT ONE ❤️❤️❤️❤️ this why why true democrats vote against the ALT LEFT.

Anonymous

how can it be a Muslim ban when over 40 primarily Muslim countries were not on list?

Anonymous

Because the president in campaign said he wants to ban muslims. This is just the beginning

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