Chief Justice Roger Gregory writes
for the majority opinion of the court, “[H]ere the Government’s proffered
rationale for the Proclamation lies at odds with the statements of the
President himself. Plaintiffs here do not just plausibly allege with
particularity that the Proclamation’s purpose is driven by anti-Muslim bias,
they offer undisputed evidence of such bias: the words of the President. This
evidence includes President Trump’s disparaging comments and tweets regarding
Muslims; his repeated proposals to ban Muslims from entering the United States;
his subsequent explanation that he would effectuate this “Muslim” ban by
targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2,
addressed only to majority-Muslim nations; and finally the issuance of the
Proclamation, which not only closely tracks EO-1 and EO-2, but which President
Trump and his advisors described as having the same goal as EO-1 and EO-2.....
Judge Paul Niemeyer noticed that the majority opinion was basing their decision on pre election statements instead of the text of the presidential proclamation alone. Even though judge Niemeyer is aware of the President’s bias against Muslims, he could not find anti-Muslim rhetoric in the travel ban. Particularly, Judge Niemeyer found that the only bias the court was allowed to consider had to be in the text of the proclamation itself, and there was no discrimination on the basis of religion found in the travel ban. Therefore, as long as the proclamation doesn’t actually say that it’s discriminating on the basis of religion, the executive order cannot be judged as a violation of the Establishment Clause.
Judge Paul Niemeyer noticed that the majority opinion was basing their decision on pre election statements instead of the text of the presidential proclamation alone. Even though judge Niemeyer is aware of the President’s bias against Muslims, he could not find anti-Muslim rhetoric in the travel ban. Particularly, Judge Niemeyer found that the only bias the court was allowed to consider had to be in the text of the proclamation itself, and there was no discrimination on the basis of religion found in the travel ban. Therefore, as long as the proclamation doesn’t actually say that it’s discriminating on the basis of religion, the executive order cannot be judged as a violation of the Establishment Clause.
Advocates
for the travel ban insist that its purpose is to achieve national security and
foreign policy goals and it is therefore not discriminatory. However, the
President himself has repeatedly equated his travel ban with a Muslim ban. President
Trumps long-term goal of barring Muslim's from entering the U.S. is the
motivating force behind his third travel ban attempt. Therefore, I think the
discriminatory intention of the travel ban violates the Constitution's
guarantee of religious freedom. The Chief Justice writing for the majority
opinion emphasizes that the travel ban "second-guesses our
nation’s dedication to religious freedom and tolerance." It's also
important to acknowledge that in the 4th Circuits ruling, they noted that the
travel ban has a much broader harmful effect that damages the families of tens
of thousands of Americans. Since it's important to look at the actual people
that this proclamation affects, the ACLU offers insight into what it’s like
to live with the Muslim ban. Will
the Supreme Court Justices decide that they have the power to prevent religious
discrimination by a president, regardless of where he emits his discriminatory
intent?
Articles Used:
https://religionnews.com/2018/02/16/another-court-finds-trump-guilty-of-religious-animus/
https://www.washingtonpost.com/national/religion/appeals-court-declares-trump-travel-ban-unconstitutional/2018/02/15/75852b82-126f-11e8-a68c-e9374188170e_story.html?utm_term=.55f7d91ee735
http://religionclause.blogspot.com/2018/02/4th-circuit-en-banc-says-trumps-third.html
7 comments:
I think you bring up an interesting point about the American citizens who are being negatively effected by this ban. I looked further into the article that you linked and it is interesting to see that many Americans described feeling like they were in a prison without the ability to have visitors. The law seems like it is facially trying to protect Americans, yet it is actually hurting many Americans who have major ties to the countries with the travel ban. It seems as though President Trump may be pretending that the law is facially neutral and simply in the interest of national security, when it is actually targeting a specific religion. Given this, I did look up evidence for why the ban may have validity. There are many muslim-majority countries, such as Indonesia, that are not on the banned list. Instead many supporters of the ban claim that it is simply targeting countries that are of the highest risk to the USA.
http://www.cnn.com/interactive/2017/03/politics/travel-ban-supporters-cnnphotos/
The basis on which the ban was going to be implemented determines its validity. To solely ban people from immigrating to our country based on faith alone is undeniably unconstitutional. However, if there is supportable evidence proving that these countries are in fact "radicalized" and are acting on their interpretation of faith to kill, then some sort of action for the safety and preservation of our country must be taken into account. The majority of muslims in the United States and the world in general are peaceful, law-abiding citizens, and should be treated with the equality that other religions receive. If the ban can be determined facially neutral by taking into account that only certain muslim-dominant countries are listed, the policy might be able to come off as a matter of national security. In actuality, President Trump has not been shy to share his disdain for muslim immigration, and to enact a law to discriminate against a specific religion is in fact unconstitutional.
By banning a specific religious group of people from entering the United States, and preventing Muslim citizens to leave and come back, it seems obvious that this law is favoring other religions and non-religions over those who practice Islam. Thus, this law is promoting an Establishment as well as violating Free-Exercise. This law not only fundamentally violates the freedoms given in the Constitution but also contributes to a racist and anti-muslim narrative that is being perpetuated in the media and social interactions on a daily basis. Many American citizens who are Muslim face discrimination as a result of the President's negative discourse and anti-muslim sentiments on a national scale. The marginalization and ostracization that these citizens face could actually turn them towards radicalization because of the social inequalities and personal attack that this legislation creates. This racism and stereotype promotion could become a self-fulfilling prophecy in a sense.
This law very clearly violates the free exercise clause by not allowing Muslim citizens specifically, to exit and enter the States as they please. By doing so, the law promotes some religions over others, going against what the Constitution stands for, and basically taking away these peoples citizenship. This radicalization could be the resulting reaction to the extreme discrimination these groups face. Using that as the only evidence in favor of the law does not provide a fair system for all religious to be judged upon.
Unless the Trump administration can prove compelling state interest for the ban, and that interest overrides the pretty apparent targeting of the Muslim religion, I don't see this faring well in court. I think intent should be factored into court decisions, otherwise you would assume all laws are neutral and at face value, you need to examine the circumstances of the act and the people behind it. I do not believe this order should stand as it establishes other religions over Islam in terms of immigration.
If there was a way to provide substantial evidence that Trump did not intend for this Proclamation to target a specific religious group, and banned "territories" that provided a threat to our national security, then I would not have an issue with the ban. That being said, there is no way to do so, this "travel ban" clearly targets a religious group that has posed little threat to our national security, in terms of immigrating to the United States to cause violence. He has clearly stated his intent, whether it is his tweets, or other statements. Banning roughly 150 million people from our country based on religion, would not only violate the principles our country was founded on, it would also create problems more significant than having no ban, based on the ACLU article.
Trump's Travel Ban has been controversial from the start. I do not see the compelling national state interest nor security justifications associated with these countries, though the Trump Administration has tried numerous times to promote this. Moreover, the intentions of Trump behind this ban are one to consider. Be it his tweets, derogatory actions, or attacks on minorities, he is clearly targeting and undermining a religious sect. Thus, violating the Establishment Clause of the First Amendment. Moreover, by prohibiting their entry into the United States, he is also violating the Free Exercise Clause as well.
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