Is A Constitutional Crisis Imminent In The Wake Of Trump's Immigration Ban?

Trump's immigration ban led to complete chaos over the weekend as protesters descended upon airports and the ACLU filed a number of lawsuits seeking to overturn an executive order which they argue is tantamount to a "Muslim ban" and a direct violation of the First Amendment.  As we pointed out yesterday (see "Federal Judge Grants Partial Block Of Trump Immigration Order"), the executive order in question indefinitely suspended the resettlement of Syrian refugees and suspended all other refugee resettlement for 120 days. It also banned entry for 90 days of nationals from seven predominantly Muslim countries: Syria, Iraq, Iran, Sudan, Libya, Somalia, and Yemen.

So far, four U.S. district judges -- in Brooklyn, New York; Boston; Alexandria, Virginia; and Seattle -- have issued temporary rulings blocking aspects of the immigration ban. That said, the provisional judicial rulings didn’t delve into deep constitutional issues of the ban which the ACLU asserts is a direct violation of the First Amendment.  Per Bloomberg:

“This was a Muslim ban wrapped in a paper-thin national-security rationale,” said Anthony Romero, executive director of the American Civil Liberties Union, one of the organizations that went to court to challenge the order.

 

“To say we’re not going to let you into the country because you’re Muslim is the very essence of religious discrimination,” said Erwin Chemerinsky, dean of the University of California, Irvine School of Law.

 

Laurence Tribe, a prominent liberal constitutional scholar at Harvard University, called the order “barely disguised religious discrimination against Muslims and religious preference for Christians.” The order by its own terms establishes preferential treatment for refugees identified with “minority religions” in their country of origin.

Trump

 

The lawsuits filed by the ACLU prompted a tidal wave of donations which totaled over $24 million in a single weekend, or roughly 6 times the organization's average annual donation tally according to the Washington Post

 

Even some conservative Republicans expressed unease about the constitutionality of the Trump order.

Focusing on the First Amendment issue, Senate Majority Leader Mitch McConnell said on ABC’s “This Week” on Sunday: “It’s hopefully going to be decided in the courts as to whether or not this has gone too far.”

 

“I think we need to be careful,” McConnell added. “We don’t have religious tests in this country.”

 

Roger Pilon, founding director of the Cato Institute’s Center for Constitutional Studies, predicted the debate over Trump’s immigration order would ultimately end up with the Supreme Court.

 

“I don’t see President Trump backing down,” he said. “I do hope, however, that the stays the lower courts are issuing will allow for a measure of ‘business as usual,’ because the initial situation seems very chaotic.”

Still, other legal scholars assert that Trump's immigration ban will stand up against Constitutional tests, with GWU professor Jonathan Turley saying the ban can't be viewed as a "Muslim ban" given the "vast majority of Muslims around the world are not affected by the limitations placed on these seven countries.”

Still, some observers said the courts ultimately might uphold Trump’s order. Its alleged anti-Muslim thrust “is not clear to me,” said Eugene Volokh, a professor at UCLA School of Law. Judges might interpret the order as targeting people from countries where “jihadist sentiments” are common, he said. The president generally has broad authority to exclude non-citizens from coming into the country, Volokh said.

 

Jonathan Turley, a law professor at George Washington University, predicted the courts would not interpret the order as a religious ban. “It is not on its face a Muslim ban,” he said. “That dog simply won’t hunt. No judge can look at the order and analyze it as a Muslim ban because the vast majority of Muslims around the world are not affected by the limitations placed on these seven countries.”

And while the ACLU, flush with $24 million in donations, is looking for a Supreme Court battle, Trump continues to fight in the court of public opinion.  From Trump's perspective, that Supreme Court pick can't come soon enough. 

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