United against an unconstitutional ban

A week after President Donald Trump signed an immigration ban, U.S. judges from at least five states have ruled against the executive order, barring all federal authorities from enforcing it.

The order banned all refugees from entering the United States for 120 days, Syrian refugees indefinitely and citizens from Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen—all predominately Muslim countries—for 90 days. If enforced, this order could affect more than 20,000 refugees, in addition to thousands of students across the nation.

Following the lead of U.S. District Judge Anne Donnelly from Brooklyn, New York, who ruled in favor of two Iraqi men who were being held at the John F. Kennedy International Airport, judges from Massachusetts, California, Virginia, and Washington state issued similar orders.

On Friday, Feb. 4, Judge James Robart of Federal District Court for the Western District of Washington temporarily blocked the immigration ban from being enforced. Robart’s order allowed those from the seven listed nations who had previously been authorized to travel, and all vetted refugees, to enter the U.S.

The White House promptly released a statement following the court order, pledging to file an emergency stay of the ruling to reinstate the president’s “lawful and appropriate order.”

“The president’s order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people,” said the statement.

On Sunday, Feb. 6, the United States Court of Appeals for the Ninth Circuit in San Francisco rejected the request submitted by the Justice Department to immediately restore the travel ban. The court said that they expected a response from the Trump administration by the following day.

With the constant battle between the courts and the administration, many are left questioning the legality of the ban.

The Anti-Discrimination statute of 1965 outlaws the discrimination of a person based on “nationality, place of birth, or place of residence,” which Trump’s order inherently does, according to the judges that have ruled against it. Of course, Congress could choose to amend or repeal the statute, like it can with any law.

Another argument highlighted by the recent court orders is that the ban violates due process and equal protection under the Constitution. Due process states that all people, even illegal immigrants, are entitled to certain legal rights before the government can force them to leave. Equal protection requires the government to treat all people equally regardless of race, alien status, nationality, etc.

Because of how quickly this order was put into place, many argue that there was no opportunity for affected individuals to practice their right to due process and make their case. Much more troubling is the question of whether the order violates equal protection by intentionally discriminating against Muslims. 

Trump has denied accusations that the order is a “Muslim ban,” based on the argument that the seven countries that were chosen have been home to conflict in the recent years and present a significant terrorism threat to the U.S. The order also cites the changes to the visa waiver program that were made by Obama administration in 2015 that placed those persons who had recently visited any of the listed seven countries under greater scrutiny before being permitted to enter the U.S.

The president’s argument is flawed, however, due to the fact that he has openly prioritized Christian refugees. The order does this by stating that once the 120-day ban is lifted, preference goes to those of “a minority religion in the individual’s country.” Being that the order specifically applies to seven predominately Muslim countries, it is clear to what the “minority religion” is. In fact, Trump told the Christian Broadcasting Network that he planned to prioritize Christian refugees, mere days before signing the order.

More far-reaching than due process and equal protection combined, is the U.S. Constitution’s Establishment Clause, which enacts the separation of church and state and declares that the government cannot favor one religion over another. While due process and equal protection can only aid those persons who are already in the U.S., if it is decided that the order violates the Establishment Clause, a court could easily rule against the ban entirely.

Following the court rulings, the U.S. State Department and U.S. Department of Homeland Security have taken immediate measures to reverse the ban.

The New York Times reported on Saturday that the State Department’s Director of Refugee Resettlement Lawrence Bartlett sent an email stating that steps are currently being taken to rebook travel for refugees, including those from Syria.

A State Department official also told The New York Times that until a new order is issued in the courts, the Department “will go back to vetting refugees, booking their travel and bringing them to the United States.” The arrival of these refugees is expected to begin as early as this week.

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