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

Liberals are idiots

Keith

And your idiotic comment on this national issue provides no illumination, you anonymous coward.

BanTheACLU

They're crazy. This is why wherever you have Democratic leadership for long periods of time you have high taxes, chaos and ghettos. Democrats don't make policies that work and are cost efficient. They make policies that fit their ideology. Being morally superior is more important than common sense solutions to immigration policy, border and national security or anything else. Liberalism is a mental disorder. How did they get this way? Berkeley?

Anonymous

Actually,
IDIOTS
are
IDIOTS.
INTELLIGENT PEOPLE ARE
INTELLIGENT PEOPLE.
Unfortunately idiots are not able to miraculously "morph" and become INTELLIGENT.
We each have our unique IQ and level of "common sense".
I feel sorry for you, bigly.So sad....

Jim Edelman

Thank you so much for fighting for religious liberty and tolerance against his hateful administration. Time for another contribution!

BanTheACLU

The ACLU didn't protect the religious liberty of that woman who owned "Sweet Cakes by Melissa". She had here name dragged through the mud, she was sued, fined and lost her business simply because she believes in traditional marriage and could not bake a wedding cake for a gay couple. Even though she gave them the business card of an excellent bakery. A Washington florist was also sued because he couldn't do floral arrangements for a same sex wedding. A high school football coach was fired for praying on the field with his students. You care more about making certain that people get in here from countries without even a stable functioning government (except Iran) than the safety of American men, women and children. Tell me, how many is enough? How many is too much? 30,000? 50,000? 100,000? 500,000? 1,000,000? How many foreigners and illegal aliens would the ACLU like to dump into our country before we no longer have a country? Do you even know the difference between true compassion and self-destruction? Where should our country draw the line? You people are the most condescending, arrogant, hateful and stupid people in this country. You would sacrifice your own safety AND the safety of all Americans all so you can feel morally superior--That's the only thing it's all about with you Liberals--moral superiority. It's like a drug to you. How selfish. How sad. Your "compassion" is totally fake!

Anonymous

Setting aside the Muslim nature of the Ban, the new Trump Regulation may not even pass the rational relationship test based upon National Origin.

No person shall receive any preference or priority or 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. 8 U.S. Code § 1152 . Specifically:

(1) The new Muslim Ban bans entry of "nationals" from Iran, Lybia, Somalia, Sudan, Syrian and Yemen.

(2) A problem with this is that bans entry to the United States of persons based upon Nationality of persons who may never have even been to those six countries, and to people many of who not have been to those countries for many, many years.

(3) This is the problem with using "Nationality" as a test for travel into the United States (or for anything else). The fact the Nationality of those people also is highly correlated to those persons potentially being Muslim is a separate issue.

(4) If one is actually concerned that contact with those six Nations has a rational relationship to "radicalization" of a person, using a "Nationality" test in no way accomplishes that. For example, if you are attempting to stop people who many have been "radicalized" in one of those six countries, a "Nationality" test does capture people who are Nationals of another non-listed country (France for example) who may have been in those 6 Nations recently.

(5) Simply, if your rationale is actually to stop travelers who have been radicalized in those six countries, there is no rational basis for using "Nationality" as the test as you capture a whole host of people who have never been to those six countries, who have not been to those six countries for a long time, and you do not capture people who are not Nationals of those six countries but were there recently and potentially were radicalized.

Summary. Given this, the Muslim Ban is not rationally tied to capturing persons who many have been radicalized in those six nations, imposes a discriminatory "Nationality" test that is not tied to addressing the actual problem and instead simply over broadly captures people based upon Nationality that have no tie to the issue the Trump Administration is CLAIMING it is trying to address (potential radicalization occurring in those six Nations).

Though I have not addressed it here, there is also the additional issues of a person from those 6 Nations having a high likelihood of being Muslim, which of course raises First Amendment Issues.

Anonymous

By using Nationality as the test, which is irrational and should fall on either equal protection or statutory grounds, the Federal Government is likewise communicating to the American people that persons in the United States who possess one of the identified Nationalities are suspect and to be feared as a potential safety threat, which impacts the constitutional rights of persons from the 6 identified Nations who are permanently in the United States either as residents or citizens. One need look no further than the Kansas incident and the recent Washington State incident to see who such a discriminatory communication by the Federal Government impacts the freedoms and lives of such persons in the United States.

Anonymous

Thanks. Good comment.

BanTheACLU

I'm so sick of you braindead Liberal organizations interfering with the national security of my country! YOU hard if hearing jackasses have been told repeatedly that this was not a Muslim ban. If it was, it would include ALL Muslim countries! It seems that the ACLU also has an aversion to border security. I'd like to ask the idiots at the ACLU: Do you leave your front door open all the time so people can just come in? No? THEN WHY SHOULD OUR COUNTRY! We are a nation of LAWS! Without borders and without LAWS we have no country! But then again, that's what you want. That's your REAL agenda! You people sicken me. You don't care about the safety of American citizens. All you care about is feeling morally superior. For that fix, you'd sell your soul. Probably already have.

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