Some thoughts on Trump’s travel ban

The Trump travel ban is a pretty legally interesting creature. I’ve been giving some thought to the various arguments surrounding it and would like to flesh it out a little on here. Warning, very lawyer-y, few if any jokes.

So in a nutshell this is the issue: the travel ban is an executive order which purports to ban (or “HEAVILY VET” or whatever, but let’s just say ban since Trump himself is) the issuance of new visas from six predominately Muslim countries. It is a “watered down” (again, these are Trump’s words) version of a previous order that was so ridiculously constitutionally problematic that even noted insane people were opposed to it.

This current ban is actually a lot better than the first ban. I won’t go too deep into the weeds, but the first ban failed to account for the rights of long-term US residents and green card holders, or those who had already been issued visas but were still outside the bounds of the US. Very problematic for a whole host of reasons, including the idea that a visa or a green card is a property right akin to a welfare benefit that can’t just be taken away for whatever reason.

So yes, new travel ban solves the biggest problems of the OTB. The main criticism directed at it is: the travel ban violates the Equal Protection clause of the Constitution by targeting members of a specific religion.

That’s the kind of laymen’s term way of stating. A very quick primer on Equal Protection law. Here is the relevant part of the clause:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall … deny to any person within its jurisdiction the equal protection of the laws.

And so what this has come to mean in practice is, no government, local, state, or federal, can unfairly target one specific group of people through the law. The major case law on this becomes what “unfairly” means (can women be barred from combat duty in war?), what “target” means (if you pass a law regulating laundromats, and most of the laundromats are owned by Asians, are you targeting Asians?), and what specific groups are protected (see: gay and lesbian Americans and marriage law).

The major argument being thrown at the travel ban is a sort of amalgam of the first and second case prongs above: what is “unfairly” “targeting.”

As every second-year law student knows, courts test equal protection cases using so-called “tiers of scrutiny.”  When a plaintiff comes before a court and says, Hello, the government is violating my equal protection rights, the court will choose a “tier” of scrutiny to apply depending on the facts of the case. “Strict scrutiny” is triggered (for our purposes) when the government is making a law that involves a protected class status: say, race or religion. It’s called “strict” because, simply, it’s hard for the government to win. To prevail, the government must show that the law was narrowly tailored, by the least restrictive means, to further a compelling government interest. (The tiers of scrutiny system is controversial and to be honest is somewhat arbitrary and confusing. For example, see Justice Kennedy’s gay marriage decision and tell me what tier of scrutiny he was purporting to utilize.)

OK! Now. Here is where it gets interesting.

Opponents of the travel ban argue that this is a law about religion. If they are correct, and the government is passing a law (not really a law…but that’s a whole other thing) about the practice of religion, strict scrutiny is triggered. If strict scrutiny is triggered, in practice, the government will lose and the ban will be struck.

These opponents have one problem to overcome. The travel ban, on its face, says nothing about religion. Practically speaking, it will ban mostly Muslims from coming to America, but it does not actually say that, nor does it target every majority-Muslim country, or (in the new version) provide a very weird and crazy exception for “religious minorities” in those countries (cough cough, Christians).

So opponents want to say: well, we KNOW what the government intended to do here. How do we know? Because they told us. Trump, who signed the executive order, has been talking up a Muslim ban for a long time now. Well, here is that Muslim ban. And if it IS a Muslim ban, well, that’s a law regulating religion, and that violates equal protection.

You might wonder, well, what is the case law on this? Like most interesting questions of law, it has never been directly addressed by the Supreme Court. Travel ban opponents like to cite McCreary County v. ACLU of KentuckyThe hyper quick brief on that case is: the court ruled that it was proper to inquire about the “purpose” of a governmental action displaying the Ten Commandments on a public space. If the “purpose” was religious in nature, it is more likely (if not dispositive) that the government violated the Establishment Clause of the Constitution.

I, personally, think the travel ban is stupid. But I am not so sure it is unconstitutional. Here is my skepticism. First, in McCreary, the court was deciding an Establishment Clause case. There is a long history in the law of inquiring as to the purpose of an action in these cases – does a law have a secular “purpose” and not merely a religious one? The travel ban is not an Establishment Clause case.

I know, I know, you are saying, that is very lawyer-y bullshit. But from that flows a bigger argument. The “purpose” test in McCreary only asks one thing: is there a secular purpose? If there is a secular purpose, that prong of the test is passed by the government – even if there is also a secret, quasi-religious purpose. This is why we have “In God We Trust” on our money. It is of “patriotic and ceremonial character,” even though it is quite blatantly and obviously an endorsement of theism. But it has this dual purpose that is allegedly half-secular and so, it passed constitutional muster.

Analogizing this to the travel ban: what happens if there is both an illegitimate and a legitimate purpose to be served by the travel ban? Remember, we are not asking here whether the travel ban is wise policy. Our only concern is its constitutionality.

So the government could conceivably say, yes, it is true that the travel ban comports with the previous statements by Trump advocating for an unconstitutional policy. But the travel ban is also a legitimate exercise in setting the immigration policy of the United States. And so the statements made by Trump are irrelevant, even if the Court were to consider them.

I think this is a pretty reasonable position. Here’s why: it’s hard for me to fathom that the government could be barred from doing something it already could do, based on previous public statements. The implication in the “Trump statements” argument is, without those statements, the ban might be okay. If, for example, Obama had passed this ban, it would not be constitutionally suspect. But because of these statements, Trump is now essentially barred from enacting this policy that another president could have enacted. That is a very weird idea to me.

It’s not too tough to see how this could be problematic in a different context, though it’s easier to think of a hypo in a local context, where mayors have more direct power than presidents (funny system we have in America). If Mayor de Blasio had said publicly, I do not like Hispanic people, and then his Department of Environmental Protection proposed the building of a new waste disposal facility in a majority-Hispanic neighborhood, would he be violating the Equal Protection clause? After all, waste disposal facilities have to go somewhere.

It becomes trickier when one asks what Trump IS allowed to do under the constitution. Can he ban immigration from one majority-Muslim country? Two? Or is six the magic number that makes this illegitimate? What if it was these six countries, and then some random country without a major Muslim population, like Botswana? Would that be okay?

Even trickier: what if some actual compelling reason to cease immigration from these countries presented itself? What if, for example, over the next few months, one immigrant each from each of the banned countries came over here and committed a terrorist act? Would that be enough for the travel ban to become constitutional, or would Trump be barred from taking that action because of his prior statements?

These are difficult questions. And I haven’t even discussed what is probably the biggest problem with the fight against the travel ban: citizens of foreign countries who live abroad and have no ties to the United States don’t have constitutional rights. The plaintiffs so far have gotten around this by saying the STATES are being harmed and have standing to sue, but that isn’t really how the Equal Protection clause works. It isn’t, after all, the right of state that is being abridged or targeted here, or even the rights of the citizens of a state. There usually isn’t a “constitutional violation by proxy.”

Anyway that is a very quick and dirty look at the travel ban.