Columbia Law Scholars’ Analysis of President Trump’s Travel Ban and the pending SCOTUS decision in Trump v. Hawaii

The Supreme Court of the United States is expected to provide a ruling in the case of Donald J. Trump, President of the United States, et al., Petitioners v. Hawaii, et al. on Monday, June 25th, 2018. The case, to be decided upon by the Supreme Court, was appealed by President Trump to Justice Kennedy on November 20th, 2017, and deals with President Trump’s Executive Orders on Travel and Immigration, frequently referred to as the “Muslim Ban.”
The focus of the case is the constitutionality of the third and most recent iteration of President Trump’s Ban on Travel and Immigration, informally known as the “Travel Ban 3.0”.  The first travel ban, issued as an Executive Order on January 27th, 2017, just one week after Trump took office, was blocked by Federal District Court Judge James Robart of Seattle, in a nationwide restraining order on February 3rd, 2017.  The second iteration was issued on March 6th, 2017, and subsequently blocked by the District Court of Hawaii on March 15th, 2017. The third iteration was issued on September 24th, 2017, and subsequently blocked by the U.S. District Court of Hawaii on October 17th, 2017.
A core concern regarding the multiple iterations of the travel ban has been the ways in which countries that would face greater travel restrictions were selected –  the initial ban focused on restrictions on the number of Syrian refugees the United States would accept, rescinded a number of visas, and imposed restrictions on travel to persons from Iraq, Iran, Syria, Yemen, Somalia, Sudan, and Libya. The title of the initial executive order, (Executive Order 13769), “Protecting the Nation from Foreign Terrorist Entry into the United States,” plays upon Islamophobic fears, which right-wing politicians have used to leverage support for anti-immigration policies. All 7 of the countries listed in Executive Order 13769 have populations a Muslim majority, and President Donald Trump’s history of xenophobic comments both during his campaign and through his time in office served as strong indicators to many that the “travel ban” would cause disproportionate harm to Muslim individuals.
The Public Rights/Private Conscience Project has followed the progress of President Trump’s Executive Orders regarding travel and immigration, and our team members have written detailed analyses of President Trump’s policies, the Travel bans, and their implications – with particular regard towards the balance of religious liberty and other fundamental rights.
As we await the Supreme Court’s ruling in Trump v. Hawaii, we collect here our work on these issues over the past 17 months.  Most recently, following the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Elizabeth Reiner Platt analyzed how the language and arguments engaged in the Supreme Court’s ruling and in the Justices’ opinions may bear on the outcome of Trump v. Hawaii.

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January 30th, 2017
Trump’s Executive Order Barring Refugees is Unconstitutional

The Public Rights/Private Conscience Project Blog, Columbia Law School
Access the full .pdf here

The Public Rights/Private Conscience Project issued a press release analyzing how Trump’s Executive Order was unconstitutional, as the order expresses a religious preference that violates the establishment clause of the U.S. Constitution’s First Amendment.

“The Public Rights/Private Conscience Project joins with thousands of lawyers, law professors, and legal organizations across the country in announcing that President Donald Trump’s recent Executive Order writing a religious preference into U.S. policy is unconstitutional. The order suspends the entire U.S. Refugee Admissions Program, declares that “entry of nationals of Syria as refugees is detrimental to the interests of the United States,” and cuts off entry into the U.S. for nationals of certain majority-Muslim countries. Several provisions of the order are clearly intended to block immigration by Muslim refugees while providing a preference for some Christian refugees to escape violence and persecution by resettling in the U.S. The Executive Order amounts to both a form of state sponsored discrimination against persons of one particular faith and a religious preference for persons of another faith, in violation of the First Amendment of the Constitution.”

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January 30, 2017
Church, State & The Trump Administration
The Public Rights/Private Conscience Project
Blog Post, The Public Rights/Private Conscience Project Blog
Access the full report here

Following the first week of the presidency of Donald J. Trump, scholars from the Public Rights/Private Conscience Project issued a document outlining the ways we anticipated the Trump administration would seek to advance particular conservative Christian tenets, restrict the rights of religious minorities, and break down the barrier between church and state. Enactment of the administration’s policy priorities (which we have seen in the ensuing months since the initial publication of this memo) call into question the careful balance between the First Amendment and other fundamental rights guaranteed under the Constitution.

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January 31, 2017
Trump Attempts to Pit LGBTQ Communities, People of Color, and Women Against Muslim Refugees and Immigrants
Ashe McGovern, Rewire News
Access the full article, here

Ashe McGovern, Legislative and Policy Director with the Public Rights/Private Conscience Project, wrote at Rewire.News on how the January 27th Executive Order engaged insidious rhetoric such as pink-washing, and ‘divide-and-conquer’ tactics historically used to isolate oppressed groups from joining in solidarity with one another.

“On the whole, the order is dangerous, misguided, and deeply rooted in this administration’s commitment to a xenophobic, racist, and Islamophobic agenda. However, two sections in particular highlight a manipulative tactic that is becoming standard practice within the Trump administration: obscuring the destructive impact of an action on some marginalized communities by couching it in a feigned concern for ‘protecting’ others.”

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February 16, 2017
What Muslim Ban? A Religious Liberty Hearing in the Trump Era
Elizabeth Reiner Platt, Religion Dispatches
Access the article, here
In this thoughtful piece at Religion Dispatches, Elizabeth Reiner Platt, Director of the Public Rights/Private Conscience Project,  discusses the rhetoric engaged by Trump supporters in discussing President Trump’s Executive Order on Travel and Immigration, with particular regard to the rights of religious minorities. The piece also discusses the language and rhetoric engaged in the Executive order in relation to information leaked at the time of publication regarding President Trump’s Executive Order on religious liberty.

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March 14, 2017
Because You’re Not Fooling Anyone: Why Trump Travel Ban 2.0 is Still Unconstitutional
Elizabeth Reiner Platt, Religion Dispatches
Access the full article, here.

Elizabeth Reiner Platt analyzed the second iteration of President Trump’s ban on travel and immigration, discussing the ways in which the language of the second iteration was shifted to ostensibly avoid violating the First Amendment’s Establishment Clause.  Platt analyzes this rhetoric and the language of the second travel ban in the context of other cases, highlighting elements that arguably violate the U.S. Constitution.
“Trump’s second attempt at banning travel from certain Muslim-majority countries is clearly written to avoid being struck down under the Establishment Clause. Most notably, it no longer contains provisions that preference entry for religious minorities—language the President himself admitted was intended to prioritize entry for Christian rather than Muslim refugees.

So why isn’t the new EO constitutional, at least with regard to First Amendment claims? Because cutting its most obviously discriminatory provision doesn’t fix the fact that the new EO was passed with the same invalid purpose as the President’s first attempt—to reduce Muslim immigration into the U.S. When a candidate campaigns for nearly two years on the promise of banning, profiling, and even registering Muslims, that is context that a court can—and should—consider in evaluating whether his actions are motivated by religious animus or legitimate security concerns.”

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June 5, 2018
Will SCOTUS’s New Zeal for “Neutrality” Affect its Decision on the “Muslim Ban”?
Elizabeth Reiner Platt, Religion Dispatches, Rewire News
Access the full article here 

Elizabeth Reiner Platt analyzes the rhetoric and language engaged by the Supreme Court of the United States in the ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission (issued on June 4th, 2018), in regards to the Court’s pending decision in the case of Trump v. Hawaii.

“Of course the elephant in the courtroom is not how the Court’s repeated emphasis on religious neutrality squares with its past decisions, but how it will affect the other most important religion case this term—Trump v. Hawaii, the challenge to President Trump’s ‘Muslim ban.’ In Masterpiece, the Court explained that ‘Factors relevant to the assessment of governmental neutrality include… the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.’ But it remains to be seen whether the Court will choose to engage in the same rigorous assessment of these factors in the travel ban case with regard to the president’s considerable history of disparaging statements about Muslims and his call for a ‘total and complete shutdown of Muslims entering the United States.'”

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June 6, 2018
What Implication does the Supreme Court’s Decision in #MasterpieceCakeshop  have for the #MuslimBan?
Liz Boylan, Public Rights/Private Conscience Project Blog
Access the blog post here

The blog post highlights PRPCP Scholar Elizabeth Reiner Platt’s article with Religion Dispatches regarding the Muslim Ban Case, and the ways in which the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission may influence or ultimately be divergent from their ruling in their forthcoming ruling in Trump v. Hawaii.

“The article specifically discusses the language engaged by the Justices with particular regard to the concepts of ‘neutrality’ and ‘religious neutrality.’ The case, of Masterpiece Cakeshop v. Colorado Civil Rights Commission, brought to the fore issues regarding religious liberty, individual freedom, civil rights, and debates about the interpretation of Constitutional Law.

As the Supreme Court is expected to provide a decision in the next few weeks in regards to the case of Trump v. Hawaii, the court’s engagement of language related to these issues is of key interest.  At stake in Trump v. Hawaii is the constitutionality of President Donald Trump’s travel ban, more commonly referred to as the ‘Muslim Ban’ for the ways in which it’s language has been interpreted as being indicative of bias against Muslim persons and countries with large populations of Muslim citizens.”

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The Public Rights/Private Conscience Project team is available for comment regarding these pieces and issues directly related to this case and our other work – to contact Professor Katherine Franke, Elizabeth Reiner Platt, or Kira Shepherd, please reach out to Elizabeth Boylan, Associate Director for the Center for Gender & Sexuality Law at 212.854.0167 or eboyla@law.columbia.edu.