Why? Well, remember, the court has consolidated two cases challenging the ban. The Fourth Circuit case is Trump v. International Refugee Assistance Project, a challenge by individuals and advocacy groups; the Ninth Circuit case is called Trump v. Hawaii—a challenge to the ban by the state of Hawaii.
The second case, in other words, has been brought by the precise entity the clause was “originally understood” to protect against federal overreach: a state government.
Hawaii is claiming—on behalf of itself and of its religiously diverse people—that the federal government has violated a solemn guarantee made to the states soon after the founding: The new government would not take it upon itself to create a national religion.
This claim deserves to be taken seriously. The ban on establishment is the most broadly worded prohibition in the Constitution. Congress is to make “no law respecting” establishment—not “prohibiting,” as in the “free exercise” clause, nor “abridging,” as in the speech and press clauses; nor “unreasonable,” as in the Fourth Amendment’s “search and seizure clause,” nor “excessive,” as in the Eighth Amendment’s “bail and fines” clause.
No. Law. At. All.
I can’t find an immigration exception in that. Indeed, arguably the ban should apply most strongly in matters of citizenship and immigration. And if “no law” means anything, surely it means that no statute (such as the Immigration and Nationality Act) can be read to silently authorize the president to decide what religions are permitted and which are not, whether in matters of immigration or anything else. How dare the federal government take it on itself to decide what religions shall be permitted in this country, and indeed to shape our population to suit the religious views of a particular president?
Admittedly, the establishment argument faces some questions of proof. Much of the debate in courts below involves what evidence can be cited to show that, in issuing the order, Trump intended to obstruct and reduce Muslim immigration. As long as we are discussing this matter like real adults rather than lawyers, though, does any reader of this column doubt what the executive order was intended to do? Could any judge worthy of the robe seriously argue that, even though all the world can see his nakedness, judges should ignore Trump’s statements and tweets?
Is there evidence of intent to exclude Muslims? As Uncle Junior of The Sopranos used to say, “What are we, children?”
American conservative thought can be oddly self-contradictory; government power over the economy, some on the right argue, is a mortal danger to liberty—but some of these same conservatives contend that government is the appropriate steward of the immortal soul. Even Clarence Thomas, however, should be willing to admit that, if the federal government takes it on itself to decide what religions are welcome here—what gods our people shall worship, who shall form “we the people” at prayer—it has betrayed a very basic commitment made in 1790. Of all the powers a powerful national government might usurp, perhaps the most terrifying would be the power to open and close the roads to heaven.