Imagine the following scenario.
A new presidential administration announces that “political turmoil and terrorism” in the Middle East requires new immigration rules.
From now on, visitors, immigrants and refugees from Israel will not be admitted.
With one exception, that is—believers in “minority religions” within the Jewish state (this is, most prominently, Christians and Muslims) will be allowed to enter, because they are being persecuted at home.
Accused of anti-Semitism, the new administration is aghast. How could you even suspect that? Look—Jews from elsewhere in the world are free to enter—even from other countries with large Jewish populations! It’s purely geographic! (With a small humanitarian exception, of course.) No religious test at all, just a desire to keep America safe. Move along, nothing to see.
Are you buying it so far?
Okay, what if we throw in these additional facts:
The new president ran for office on a pledge to bar Jews from entering the United States. And the proclamation makes no mention of Judaism but specifically mentions that one of the problems with immigrants from Israel (except, of course, Christians and Muslims) is that they discriminate against women and look down on other religions.
What if a presidential adviser states that the president asked him to write a ban on Jewish immigrants that would seem legal?
Does “purely geographic” still pass the laugh test?
The constitutionality of Trump’s order shutting down refugee admissions, and barring any immigrants from seven predominantly Muslim nations, is a complicated question. Immigration is a highly specialized constitutional area. But a constitutional lawyer would first ask: Is this, as the president has claimed, a “geographic” order, targeting certain countries “compromised by terrorism”? Or is it a “religious test,” intentionally singling out one religion for adverse treatment?
The answer can be constitutionally quite important. In order to violate the Constitution’s requirement of “equal protection of the laws,” a government measure must intentionally discriminate on the basis of a given trait. In this case, the question is whether the order intentionally discriminates against Muslims.
Over the years, the courts have developed a set of tests to find “intentional discrimination.” They are necessary because governments often deny any intent to discriminate against a group or on the basis of a trait. (Certainly the administration denies that now.) Lawyers first look at the precise terms of a government regulation; then they look at its structure and exceptions; then they look at statements made by decision-makers; then they look at the events and procedures surrounding its adoption.
The executive order fails every one of these tests. This is a religious “classification” that intentionally discriminates against Muslims—because of hostility to their religion.
These facts of my hypothetical precisely match Trump’s order. The order states as a reason for its restrictions a desire to exclude “those who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own).” Though “honor killings” is not linked to any religion, its inclusion here is a dog whistle, because the term has been used by Islamophobes who claim (falsely) that it characterizes Muslim society generally.
"The order also allows immigration officials to continue to admit refugees--including refugees from the seven predominantly Muslim countries otherwise banned––on a “case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest—including when the person is a religious minority in his country of nationality facing religious persecution.”* In case that last clause was unclear, Trump then announced that it was intended to give priority to Middle Eastern Christians, because they have been “horribly treated,” and so “we are going to help them.”
Candidate Trump loudly proposed a “total and complete shutdown of Muslims entering the United States.” Trump adviser Rudolph Giuliani has proudly boasted that the new president asked him to come up with a way of implementing a “Muslim ban” that would be “legal.”
In a 1977 case called Village of Arlington Heights v. Metropolitan Housing Corp., the Court laid out a set of procedural tests of a government decision: Is there a history of discrimination leading up to it? Were the specific events leading to the decision unusual? Did the new policy represent a sudden change in procedures and substance?
Anti-Muslim discrimination (and hate crimes) are very much a part of recent American history. The specific events leading up to the surprise order were not just unusual but bizarre. Press reports indicate that the officials responsible for refugee policy (e.g., the secretary of homeland security, Gen. John Kelly) were not consulted or notified. The new criteria represent a radical change in immigration and refugee policy.
The fact that it does not exclude all Muslim immigrants doesn’t make it “neutral.” A rule barring Jews, but not others, from only one place still discriminates against Jews. Discrimination does not disappear simply because it is partial. The test is the intention, and the evidence of intent is plentiful here.
Whether it’s legal, and constitutional, is a different question. But let’s not confuse ourselves:
Yes, it’s a “Muslim ban.”
* This article originally stated that the executive order allowed immigration officials to admit refugees from the predominantly Muslim countries on a case-by-case basis; that provision applies to all refugees. We regret the error.