By Guest Contributor, Nicholas Espiritu
By issuing a new travel ban reportedly framed to address constitutional concerns and avoid protests, the Trump Administration seeks to hit the “reset” button. But, this executive order’s new language can’t hide the fact that it’s targeting Muslims, not terrorism.
This week’s order follows the January 27, 2017, directive realizing President Trump’s campaign promise to institute a Muslim ban. That document restricted people from seven
majority-Muslim countries from entering the United States for a period of at least 90 days, halting most refugee admissions for 120 days, and indefinitely barred admission of Syrian refugees. It also slashed the number of annual refugee admissions from 110,000 to 50,000 for the current fiscal year. This week, Iraq is no longer one of the excluded nations and Syrian refugees have a reprieve of sorts in the form of a 120-day freeze on entering the country.
The first order triggered massive demonstrations and legal challenges. By the end of the ban’s first day, a New York federal judge granted a nationwide stay of removal preventing the Administration from deporting refugees and others lawfully authorized to enter the United States. In the ensuing days, additional lawsuits were brought asserting that the executive order discriminated against Muslims, violating the guarantees of equal protection provided by the Due Process and Establishment Clauses.
In response, the Government argued that this couldn’t be considered a “Muslim ban” because it did not, on its face, target Muslims. It only singled out countries that just happened be over 90% Muslim.
While this argument was incredible, the Administration’s back-up justification was perhaps more shocking: “the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.”
How could the government make such an assertion? After Marbury v. Madison (it’s “emphatically the province and the duty” of the courts to say what the law is”)? Or Hamdi v. Rumsfeld (where the Court not only reviewed the President’s decisions about how to treat citizen enemy combatants, but ordered that, even in war, the executive can’t trample on an individual’s constitutional rights)?
To understand the Administration’s arguments, I suggest turning to one of the central tenets (or warnings) of Critical Race Theory. Ian Haney Lopez has explained: “law not only constructs race but race constructs law.” In other words, the federal government’s arguments here are based on doctrines that long have justified practices subordinating racial minorities.
The Government claims that the executive order does not constitute a “Muslim ban” because nothing on the face of the document targets this group. It so argues because courts typically defer to such explanations, even when there’s no any evidence supporting the State’s asserted rationale. This doctrine developed because courts were unwilling to extend equal protection principles to protect racial minorities from laws that had a disparate racial impact, despite proof that governmental decision makers knew of the racially disproportionate effect. Instead, courts required racial minorities to demonstrate that an impermissible animus motivated the governmental action, even though doing so would be extraordinarily difficult. Haney-Lopez has described the regime that followed this analysis as one of “intentional blindness,” with mechanisms of racial subordination that legitimize laws harming racial minorities, declaring them to be free from racial taint.
However, the President’s continued anti-Muslim and discriminatory rhetoric might mean that the usual difficulties presented by current doctrine of demonstrating impermissible animus don’t exist, particularly given statements explaining that Trump intended to implement a Muslim ban, but camouflage it with non-religious criteria to survive any legal challenge.
Perhaps in light of this fundamental weakness, the Administration is also relying on the more far reaching “plenary power” doctrine, which views federal immigration law as largely immune from the constitutional limitations that generally constrain federal power in other contexts. The plenary power doctrine emerged from cases sanctioning the racist Chinese Exclusion Act, which, according to Gabriel “Jack” Chin, “continue to be cited in modern decisions of the Supreme Court because all constitutional immigration law flows from these cases.” The federal government argues that these precedents authorize the President by statute to deny non-citizens entry into the United States without courts reviewing his action.
While the judiciary’s actions in the past month suggest an unwillingness to go that far, it remains to be seen whether courts will grant the Administration the extreme deference it seeks or do the right thing: robustly examine the President’s actions to make certain that we do not repeat the mistakes of some of our Country’s gravest wrongs.
Nicholas Espiritu is a staff attorney at the National Immigration Law Center and a Commissioner on the American Bar Association Immigration Commission. Follow him on Twitter at @NicoEspiritu9.