Is Trump’s Muslim Ban Constitutional?

Trump’s announcement to temporarily ban entry of Muslims from Iraq, Iran, Syria, Sudan, Somalia, Yemen, and Libya is a cause for concern, especially from the point of view of human rights and constitutionality. Violence in these countries have been the catalyst to one of the largest exodus of refugees, creating a humanitarian crisis as hundreds of thousands flee to Europe and elsewhere.

A “Muslim ban” would be a direct violation of both the First Amendment and the Fifth Amendment—even if it is disguised through limiting certain nationalities from entering the United States.

From the First Amendment, the Establishment Clause would be in direct violation, which prohibits the U.S. government to prefer one religion over another. This especially holds true when policy is “explicitly disapproving of one religion and implicitly preferring others.” Though, typically this clause applies to congressional action, its reach also applies to any executive orders as well, see precedent set by: Shrum v. City of Coweta, Okla. (2006).

From the First Amendment, the Establishment Clause would be in direct violation, which prohibits the U.S. government to prefer one religion over another.

The Fifth Amendment even further puts a spotlight on the constitutionality of the Muslim ban. It would be a violation of due process and equal protection—both cornerstone clauses in the Fifth Amendment. Specifically, “any religion-based bar on the readmission of lawful permanent residents—who have a lawful readmission [even with a brief trip abroad] unless and until the government can prove they should lose that right.”

Moreover, the order also implements a “values” test for future visa applicants. The American-Arab Anti-Discrimination Committee likened this to an “ideology test” that will ask about religious beliefs. Joanne Lim, senior legislative counsel for the American Civil Liberties Union, warned that the wording could even violate the First Amendment right to freedom of speech by punishing those who are rightfully critical of the U.S. government’s imperialist policies.

The order is anticipated to tear apart families, as it’s likely that it will be extended to the spouses of U.S. citizens in blacklisted countries as well. Other organizations warn that it may even apply to permanent residents who are outside the country, dual nationals who are citizens of a non-targeted country, and current green card holders from Muslim-majority countries. Students from blacklisted countries who are on visas are advised not to leave the U.S., as they will not be able to return.

Other organizations warn that it may even apply to permanent residents who are outside the country, dual nationals who are citizens of a non-targeted country, and current green card holders from Muslim-majority countries.

There have already been reports of those who had been previously issued visas being detained, including two Iraqi citizens with ties to the U.S. military, one of whom was granted a special immigrant visa the day of Trump’s inauguration.  He previously worked with the U.S. government as a translator for 10 years, from 2003 to 2013.

Select human right organizations are working toward defending the rights of refugees and immigrants under a Trump presidency and openly denounced his inauguration. You can either donate or seek help in person, directly online, or through a phone call.

These organizations include:

• American Civil Liberties Union National (ACLU): “Trump has spoken of creating a deportation force, banning Muslim immigrants, restricting reproductive rights, curtailing free speech, and much more. We must ensure that whenever and wherever Trump acts to violate people’s rights, he faces a strong, principled, and unyielding opposition.”
• Council on American-Islamic Relations (CAIR): “CAIR’s civil rights department counsels, mediates and advocates on behalf of Muslims and others who have experienced religious discrimination, defamation or hate crimes.”
• Muslim American Leadership Alliance (MALA): “An alliance dedicated to leadership through integrity, MALA provides a platform for Muslim-Americans to share their stories; nurtures emerging community leaders; and unites Americans of all backgrounds to advance constructive solutions to extremism and human rights abuses.”
• Muslim Public Affairs Council (MPAC): “America is enriched by the vital contributions of American Muslims. We promote the Islamic and American values of mercy, justice, peace, human dignity, freedom, and equality for all.”
• Human Rights Watch: “Human Rights Watch’s Refugee Rights Program defends the rights of refugees, asylum seekers, and displaced people worldwide. We respond to emergencies as well as chronic situations, focusing especially on documenting government efforts to block access to asylum, to deprive asylum seekers of rights.”
• Amnesty International: “In the face of this global refugee crisis, the U.S. refugee admissions program must continue to stand as a strong program, reflective of our values and commitment to human rights.”
• National Iranian American Council (NIAC): “Donald Trump is making good on the most shameful and discriminatory promises he made on the campaign trail. He called for a Muslim ban and is now taking the first steps to implement one. This will not stand. The American people are better than this.”
• United Nations High Commissioner for Refugees (UNHCR): “We strive to ensure that everyone has the right to seek asylum and find safe refuge in another State, with the option to eventually return home, integrate or resettle.”