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.”