Getty ON THE BENCH Is Trump’s New Travel Ban Constitutional?

Richard Primus is the Theodore J. St. Antoine Professor of Law at the University of Michigan Law School. Follow him on Twitter @Richard_Primus.

Version 2.0 of President Donald Trump’s travel ban was written to solve a specific problem: The federal courts were poised to hold the first version unconstitutional. But it’s not at all clear that the new order will survive judicial scrutiny, either.

Yes, Monday’s revised executive order suspending the entry of refugees and restricting entry by people from six Middle Eastern countries is more carefully crafted than its Jan. 26 predecessor. Some of the changes, like the exemptions for children and for people who already have visas, will likely obviate some constitutional objections to the earlier order. But the darkest constitutional shadow hanging over the first travel ban hangs over the second one as well. If the current order is motivated by anti-Muslim prejudice, it violates constitutional guarantees of religious freedom, equal protection of the laws, or both.


To be sure, it would be highly unusual for the courts to strike down an executive order as purposefully discriminatory. For one thing, federal courts almost never strike down any sort of federal enactment on that ground, if only because federal courts—composed of people nominated by presidents and confirmed by senators—tend to have roughly the same mainstream intuitions about what counts as objectionable discrimination that the federal government’s lawmakers have. (The laws that get struck down as purposefully discriminatory are overwhelmingly state laws, usually from states where the relevant norms don’t quite line up with nationally predominant intuitions.)

Courts are also loath to second-guess executive branch decisions in the realms of national security and foreign affairs. But everything about this case is already highly unusual. The order’s history betrays the discriminatory purposes that today’s revised version is intended to conceal, and some of the new order’s particular content points in the same direction. As the courts will surely understand.

Consider the history first. Trump ran an overtly xenophobic campaign, one that prominently featured a ban on Muslims entering the country. Federal judges know that as well as anyone else, and they know it regardless of who appointed them. Several district courts and then the Court of Appeals for the Ninth Circuit quickly diagnosed the Jan. 26 order as probably motivated by anti-Muslim prejudice. Rather than trying to salvage that order, the administration has replaced it with Monday’s version, which is a bit cleaned up and which explicitly denies any anti-Muslim motivations. But maybe all the administration is doing is creating a veneer. Maybe the underlying purpose is still the same.

How Trump's new travel ban targets the whole world

Consider this brief parable: I overhear my three kids plotting to raid the chocolate stash that I keep on a high shelf in the pantry. I don’t intervene yet; I want to see what develops. Five minutes later, I find them in the pantry with a stepstool. I tell them I know what they’re up to and that they need to cut it out, and they retreat, stepstool in tow. Then, 30 minutes later, I notice someone walking quietly toward the pantry with the stepstool again. But this time it’s a little different. For one thing, only two of my kids are participating. For another, they have their coats on. When they see me, they explain they’re not actually going to the pantry. They’re taking the stepstool outside to try to get a ball that’s lodged in the evergreen tree. Do I take their word for it? Or do I have good reason to think that their purpose is the same as it was the first time?

If I weren’t sure, here are some things I might want to know. How did they talk about this project when I wasn’t the audience? And by the way, is there in fact a ball stuck in the evergreen tree outside?

The analogous inquiries could go badly for the Trump administration. For starters, the text of the executive order disavows any focus on barring Muslims in particular, but a Trump fundraising email announcing the order to the president’s supporters spoke specifically of the threat of “radical Islamic terrorism” and named no other kind. In other words, the administration wants to tell the courts that the order isn’t aimed at Muslims in particular and at the same time to boast to its contributors that it is taking action to meet a particularly Muslim problem.

Next, when the order describes the terrorism threat the travel restrictions are meant to combat, it speaks of “hundreds of persons born abroad [who] have been convicted of terrorism-related crimes in the United States,” some number of them refugees. But it cites only two examples: one case involving two Iraqi nationals and one case involving a Somali native, now an adult, who came to America as a child. The order in its current form would have done nothing at all to reduce terrorism in the first case, because the current version does not cover Iraqis. The order might not have done anything in the second case either, because in its current version the order authorizes waivers in cases involving children.

In short, the order does nothing to explain why it targets the people it targets—let alone why it pays no attention to non-Muslim countries such as Colombia and Venezuela that the State Department classifies as “terrorist safe havens.” The mismatch between the administration’s claim that the order is a reasoned attempt to meet a terrorist threat and the order’s actual policy raises a suspicion that its ostensible purpose is a pretext for something else—sort of like the suspicion I’d have about my kids’ cover story if there were in fact no ball lodged in my evergreen tree, or maybe if there were a ball in the tree but far too high up for the stepstool to be a reasonable solution.

Sometimes it’s possible to mask an illicit purpose, especially when courts are inclined to be deferential. But when courts defer to executive officials or legislatures, giving them the benefit of the doubt, they often know they’re looking the other way. At the very least, they’re deciding not to look too closely. But as the pretextual nature of the explanation for an unconstitutional policy becomes more blatant, it’s harder and harder for judges to look the other way without seeming like chumps. (If you exceed the speed limit by a few miles an hour as you pass a roadside cop with a speed gun, the cop might let it slide. But if you actually pass a moving police cruiser that is driving the speed limit, you’ll pay for the insult.)

If there is one federal judge who is particularly annoyed by people who he thinks are playing him for a fool, it’s probably Supreme Court Justice Anthony Kennedy. Justice Kennedy is in any case less prone than most of his colleagues to defer to legislative or executive officials; he tends to be supremely confident in his own decision-making capacity. And if he thinks that someone is trying to sneak something past him, he feels the insult. You can’t speed past the cop car Kennedy is driving and then tell him to trust your speedometer more than his own. So if this new order winds up in front of the Supreme Court, it will face a swing justice who may not be inclined to look the other way.

In the end, the administration’s deepest constitutional problem in this affair is entirely straightforward. The order is in fact animated by prejudice, and pretty much everyone knows it. To be sure, there’s no guarantee of how the judiciary will ultimately rule on this order; as with so much else just now, we are in uncharted waters. But when a powerful person in the public eye does something that he promised to do, the way that his organization executes the task will leave telltale signs about its motives. Our actions do usually have some connection to our actual intentions, after all. And if those intentions were previously announced, it’s harder to convince people that they aren’t seeing what it looks like they’re seeing.