04 Februar 2017

Trump’s Muslim Ban and its Constitutional Limits

The dramatic executive orders of the newly inaugurated President of the United States, Donald Trump, including, most infamously, his executive order excluding Syrian refugees from entry into the United States, and popularly known as the “Muslim ban,” has raised not only hackles among many outside observers, but also questions about the legality of these orders.  The short answer is that some of the matters set out in his executive orders, including those affecting refugees, are almost certainly legal, while other aspects of those orders raise significant issues under the United States constitution.  It is of course beyond the scope of this short post to discuss the legality of each and every detail of Trump’s various orders, and accordingly, I will only provide a description of the broad constitutional and statutory issues that these order raise.

The first question is whether the United States executive has any inherent law-making authority under the United States constitution.  Here, the question is clearly yes, most obviously in the field of foreign relations. The Supreme Court, in American Insurance Association v. Garamendi, 537 US 1100 (2003), affirmed the proposition that under the United States constitution, the conduct of foreign affairs is a matter for the national government, exercised largely, even if not exclusively through, the executive branch.  Accordingly, “in foreign affairs the President has a degree of independent authority to act [without the permission of Congress].” The heretofore unresolved question of US constitutional law is whether substantive constitutional values that limit the domestic power of the federal government also apply to limit its power in its conduct of foreign relations.  United States courts have, over the years, given conflicting answers to this question.  The most prominent case asserting that the US executive is free to conduct foreign relations without any constitutional constraints is the Curtiss-Wright case, 299 US 304 (1936).  In that decision, the Supreme Court articulated a theory of executive power in the conduct of foreign relations that identified the source of that power in the sovereignty of the United States.  Accordingly, the constitution does not create the power to conduct foreign relations; rather, all it does is vest that power, which pre-existed the constitution, in the executive branch of the government, which is represented exclusively by the president.  Because this power is pre-constitutional, the constitutional limitations that apply to the domestic actions of the federal government are not relevant to its conduct of international relations.    

The theory of a constitutionally-unburdened executive branch acting in the sphere of foreign relations, however, was only dicta: Congress, on the facts of that case, had in fact granted the president authority to act, and therefore, its reasoning does not carry precedential weight.  Other Supreme Court cases interpreting executive authority suggest that Congress has the power to limit the president’s power to conduct foreign relations, even indirectly.  A good example is Dames & Moore, 453 US 654 (1981), a case that arose out of the Algiers Accord settling the Iran hostage diplomatic crisis of 1979-80. Pursuant to the Algiers Accord, the then President Ronald Reagan issues an executive order prohibiting American plaintiffs from pursuing private causes of action against the Iranian state which were then pending in US state and federal courts, and even went so far as to prohibit American plaintiffs from satisfying their claims out of Iranian state assets that they had previously attached pursuant to valid judicial rulings. The executive order provided for a special tribunal, the Iran Claims Tribunal, and vested in it exclusive jurisdiction to hear all disputes between American citizens and Iran, and limited recovery to Iranian assets that were pledged to that tribunal. In concluding that this exercise of executive power was lawful, the Supreme Court noted that although Congress had not expressly delegated to the president such power, Congress had previously delegated to the president power to resolve disputes in situations broadly analogous to the Iran hostage crisis, and in times of other international crisis, had tacitly approved a long-series of executive resolution of private claims of US citizens against foreign sovereigns without objection.

That reasoning implies, but does not explicitly endorse, the notion that Congress has the power to limit executive authority, even in the sensitive realm of foreign relations. The ambiguity of the constitutional limitations on the president’s powers to conduct foreign relations means that President Trump’s “Muslim Ban” raises complex constitutional questions: does the president have inherent constitutional authority over immigration pursuant to his power to conduct foreign relations, or is his power to do so effectively circumscribed by the terms that Congress has provided in the Immigration and Naturalization Act (the “INA”), which it passed pursuant to its constitutional authority over immigration under Article I, Sec. 8 of the constitution?  The INA, moreover, is a complex statute, having been amended and re-amended numerous times throughout its history, with the result that many provisions co-exist in tension with others.  For example, Congress passed legislation in 1965 amending the INA to prohibit restrictions on immigration on the basis of national origin, but prior to that, in 1952, Congress, acting out of fears of possible communist infiltration during the Cold War, also delegated to the president the authority under the INA, 8 USC § 1182(f) to deem any alien inadmissible, even one holding a valid visa. Some have already argued that insofar as the Muslim ban prohibits immigration from specified countries, that it violates the INA’s prohibition against national origin discrimination in immigration.

On the assumption that the INA bars Trump from excluding categorically persons from immigration to the United States based on their nationality, Trump could nevertheless argue that, given the primacy of the president in the conduct of foreign relations, his views of the national interest in connection with who is, and who is not, admissible to the United States should pre-empt the conflicting views of Congress. Under this argument, the executive has inherent constitutional authority as sole representative of the sovereignty of the United States in international relations to determine who is, and who is not, admissible to its territory. It is not surprising then that President Trump, in the text of the executive authority, asserts that he is acting pursuant to both the constitution and the INA.  It is indisputable, however, that the statutory dispute could be mooted at any time if the Republican-controlled Congress adopted express legislation permitting the president to discriminate in the context of immigration on the basis of national origin, if he finds, for example, that such discrimination is necessary for the national interest.

There is also the question of whether Trump’s order prohibiting the entry of Syrian refugees is lawful. The United States is a party to the 1951 Refugee Convention, and has adopted implementing legislation to fulfill its obligations under that convention, even if the quality of its implementation remains the subject of criticism from certain human rights groups. This might also provide another ground for finding Trump’s executive order unlawful in addition to the question of national origin discrimination.

While there is at least a plausible claim that the Muslim Ban violates the prohibition against national origin discrimination set out in the INA, the INA itself does not prohibit discrimination on the basis of religion.  Could, therefore, President Trump issue an executive order expressly banning the entry of Muslims, or otherwise expressly singling out Muslims for “extreme vetting”?  The majority of commentators seem to believe that the Establishment Clause of the United States Constitution would indeed prohibit an executive order that expressly relied on religious classifications, and on that basis, one district court in California, when it agreed to issue an order requiring the Department of Homeland Security to return an Iranian who had been deported after the promulgation of the Muslim Ban, reasoned that it was likely that the order violated the Establishment Clause.  The order, of course, does not expressly say “Islam” or “Muslim,” but presumably the Establishment Clause is nonetheless implicated by the order’s prioritization of refugees of minority religions. Insofar as Islam is the majority religion in all the states mentioned in the order, it follows that the order necessarily discriminates against Islam and Muslims.

Ordinarily, however, US courts do not examine extrinsic evidence in determining the motive of a law, relying instead only on the language contained within the four-corners of the final law.  Here, however, it is not implausible that a court would take judicial notice of the Trump campaign’s consistent anti-Muslim rhetoric, as well as statements made by the President contemporaneously with the adoption of the Muslim Ban to Christian groups that at least one of his goals was to prioritize Christian refugees, and public statements by some of his advisers, such as Rudy Giuliani, who said that then candidate Trump approached him with the express request that he formulate a plan to make the Muslim ban that candidate Trump was proposing on the campaign trail simultaneously effective and constitutional.

At the same time, however, the dicta of Curtiss-Wright should not be erased from our analysis.  US courts have traditionally been very reticent to question a president’s exercise of the foreign relations powers, particularly in the absence of evidence of strong Congressional disapproval.  While there have been rumblings of Congressional dissent, these are probably not so strong or vocal as to elicit, all things being equal, sufficient skepticism from the US federal courts as to strike down the Muslim Ban as unconstitutional.  But in this case it may very well be that not all things are equal – President Trump is widely viewed as acting hastily and recklessly, without subjecting his executive actions to the ordinary processes of internal executive branch vetting for legality and practicability.  And, the evidence seems clear that Trump bypassed all the customary executive branch vetting procedures when he issued the Muslim Ban. This gives rise to the possibility that a reviewing court could conclude that his actions were unconstitutional, not because of religious discrimination as such, but because they were “arbitrary and capricious.”  Indeed, when a federal district court on February 3 issued a nationwide temporary stay against enforcement of the Muslim Ban, its reasoning appeared to focus on the arbitrariness of the executive order: it found no evidence supporting the federal government’s contention that, by blocking the entry of nationals from those seven countries, it was acting to protect the safety of the public.

Striking down executive actions on grounds of arbitrariness, although exceptional, and in the context of United States’ foreign relations law perhaps even unprecedented, would allow the court to strike down offensive orders such as the Muslim Ban without conclusively resolving the question of the constitutional limits on the president’s foreign relations powers, something that it is almost certainly reluctant to do. It would also force the president to go back to the drawing board, having absorbed the lesson that even the president must respect institutional formalities in the exercise of executive power, with the hope that when he does so, the scope and tone of the executive order would be sufficiently tempered so as to make it more palatable to a wider-range of constituencies and therefore less “arbitrary.”

I cannot predict with any degree of certainty how US courts will treat Trump’s executive orders, particularly the Muslim Ban, but his brazen contempt for the accepted practices of the exercise of executive power may in fact be his undoing insofar as it will force courts to consider squarely the question of whether judicial deference to an executive who does not even attempt to pretend to adhere to the moral restraints of democracy is appropriate, even if there are plausible constitutional arguments that his orders could be, from a substantive perspective, constitutionally sound.


SUGGESTED CITATION  Fadel, Mohammad: Trump’s Muslim Ban and its Constitutional Limits, VerfBlog, 2017/2/04, https://verfassungsblog.de/trumps-muslim-ban-and-its-constitutional-limits/, DOI: 10.17176/20170206-095651.

17 Comments

  1. Wernus Sa 4 Feb 2017 at 21:43 - Reply

    It was not a „muslim ban“. What a scientific article who fails in it first sentence!

  2. Wernus Sa 4 Feb 2017 at 21:44 - Reply

    It was not a „muslim ban“. What a scientific article who fails in its first sentence!

  3. Professor Harr Lepinske Sa 4 Feb 2017 at 23:11 - Reply

    Ii is NOT a Muslim ban

  4. Bernd Lauert So 5 Feb 2017 at 13:16 - Reply

    As previous commentators have pointed out, it’s not a Muslim ban. Almost 90 % of Muslims aren’t affected by the ban.

    However, why would a Muslim ban be a no-go? According to the global terrorism index, Muslims commit 66 % of terror acts (https://www.welt.de/politik/ausland/article134448791/Islamisten-verueben-66-Prozent-aller-Bluttaten.html).

    Many commentators knowledgeable on the subject point out that there is an inherent connection between Muslim beliefs and terror.

    https://www.welt.de/debatte/kommentare/article132932718/Das-Funktionaersproblem-im-deutschen-Islam.html

    https://www.welt.de/politik/article1500196/Der-Terror-kommt-aus-dem-Herzen-des-Islam.html

    Freedom of religion does not trump the right to life and safety.

  5. Iftikhar Ahmad So 5 Feb 2017 at 22:20 - Reply

    The first amendment of the US Constitution grants all the right to practice their chosen religion (or no religion) without provocation, just as it prohibits anyone from imposing a ’state‘ religion. The founding fathers knew the tenets of Islam and some studied the Quran, like Jefferson, Franklin, and Adam, incorporating its wisdom into the Constitution. This law protects not just you as having been born here, but all who are in the territories claimed by the US, Muslim, Jew, Christian, Sikh, Hindu, Buddhist. agnostic, Wiccan, or atheist; immigrant or non-immigrant; natural or naturalized citizen and non-citizen. All but the indigenous peoples-the native Americans- are immigrant here: Europeans, African, or Asian or descendants of them.

    Donald J Trump has violated not only the law but the raison d être of the United States of America, but he is not the first to have done so, just as we who profess Islam are not the first to have been discriminated against or to be threatened with expulsion or to be refused admittance or shunned for practicing our original rituals or celebrations. History is rife with atrocities done to immigrants and those who were born here: the natives, the African slaves, Jews, eastern Europeans, the Chinese, the Japanese, the Roman Catholics, and the Irish, just to name a few who have endured maltreatment. They have survived and so to shall we.

    ‚I created you in diversity, not as enemy but to know one another.‘
    IA
    http://www.londonschoolofislamic.sorg.uk

  6. Anna Katharina Mangold Mo 6 Feb 2017 at 11:41 - Reply

    Asking those who argue it was not a Muslim Ban: do you really hold that only if 100 % of a group are negatively affected by a measure this would constitute a discrimination? The Executive Order is being rightly labelled a Muslim Ban (see Rudy Giuliani’s statement thankfully clarifying this point). The shift away from „all Muslims“ to „persons from certain countries with a majority of Muslim citizens“ is just a coverage of the discriminatory intention. That’s what the doctrinal figure of indirect discrimination was invented for. By the US Supreme Court itself, by the way, in Griggs v Duke Power Co, 401 US 424 (1971). So those who use a proxy of the actual ground of discrimination may not get away with such obvious circumventions of antidiscriminatory prohibitions.

  7. Leser Mo 6 Feb 2017 at 12:31 - Reply

    „However, why would a Muslim ban be a no-go? According to the global terrorism index, Muslims commit 66 % of terror acts“

    Most rapes are committed by men.
    Rapes sometimes occur in parks.
    I am a man, but have never committed a rape (and don’t plan to, either).
    Shall I be banned from visiting parks?

    I can understand and share a deep worry about the correlation between Islam and terrorism. One certainly has to discuss if Islam or certain „flavors“ of Islam promote violence.
    But one also has to remind oneself that these acts of terrorism also strongly correlate with poverty, „cultural globalization“, political oppression and many other factors.
    If the ruling Saudi clan would have used radical Christian or Hindu clerics to establish and justify their rule instead of radical Muslims, maybe we’d see Christian or Hindu terrorists.

    The problem, in my view, is not Islam, but religious radicalism. A moderate Islam is just as okay as a moderate Christian, Jew, Hindu, Buddhist or Pastafarian.
    But a radical of any kind is a problem. Granted, the prevalence of radical Pastafarians is much, much lower than in Christians or Muslims. But in the end, it would be as much a problem as a radical Muslim.

    Also, there’s this thing called the constitution and freedom of religion, which prohibits discrimination of religious people for whatever reason. If one doesn’t like that anymore, one has to take the proper step and remove that article/amendment.
    In the case of the US, re-purposing it as a primary Christian state and maybe even establishing a state church may be fitting, but I think it collides with the basic idea the US was supposedly founded on, i. e. tax breaks, uhm, I mean religious freedom.

  8. Leser Mo 6 Feb 2017 at 12:34 - Reply

    P. S.:

    „As previous commentators have pointed out, it’s not a Muslim ban. Almost 90 % of Muslims aren’t affected by the ban.“

    If one guy gets beaten up ‚cause his skin is black, all other black guys aren’t affected by that.

    It’s still racial discrimination, though.

  9. shahid Mo 6 Feb 2017 at 13:07 - Reply

    Wernus, Harr, Bernd, therefore the author said „popularly known as …“ and then put Muslim ban in inverted commas. Please read with an open mind; be careful of your ideologically pedantic. Read the article carefully and then contribute. Harr, after all you a professor, not a politician or ideologue. Be methodologically thorough.

  10. Bernd Lauert Mo 6 Feb 2017 at 13:19 - Reply

    @ Leser:

    „Most rapes are committed by men.“

    That’s true, but what are you suggesting? Creating a society without men?

    Also, in western countries, muslims make up the majority of rapists relatively to their share of the total population. That’s true for most other crimes as well. This can be easily derived not only from police statistics but also from surveys concerning how the inmate population is composed. For France e.g., it is nearly 70 % muslim inmates, but only 8 % of the total population are muslims. In most western countries that do surveys like these, muslims are at least 3 times more likely to be inmates than non-muslims.

    Unfortunately, Germany does not do any surveys like these, but the SPACE study found out that 30 % of inmates in Germany are foreigners. If there is any correlation with the PKS at all, than most of these foreigners come from mostly muslim countries.

    This means: pointing out that most criminals are men is not an argument for allowing muslim immigration, as this only worsenes an already existing problem.

    Also, pointing out that banning muslims or people from primarily muslim countries from entering is a discrimination and a violation of their constitutional rights, forgets the other half of the required consideration. Consitutional rights never exist in a vaccum; practical concordance with the constitutional rights of others has to be made at all times.

    This means that non-muslims have a constitutional right to be protected from the high risks eminating from muslim communities.

  11. Daniel Toda Mo 6 Feb 2017 at 13:23 - Reply

    I do not think that we have to discuss whether the measure is discriminatory on grounds of religion, because it is already discriminatory on grounds of country of origin and because it impairs the effectiveness of the Geneva Convention. That is at least just as outrageous. And it might be that 66% of terrorist acts are committed by persons of Islamic faith, but if one includes other kinds of criminal offences, the result will look differently. Americans killing other people, whether American or not, are not scarce. Terrorism under the pretext of Islam is a relatively new phenomenon. Think of other terrorist groups that acted in Europe (Rote Armee Fraktion, ETA, IRA). Those were European people, for sure not Muslims, and what they did was just as bad. No one is better than the others.

  12. Leser Mo 6 Feb 2017 at 13:53 - Reply

    „That’s true, but what are you suggesting? Creating a society without men?“

    What are you suggesting? A society without Muslims?

    Your points are valid, but – in my view – they don’t carry the conclusion you draw. Of course a lot of inmates and criminals are immigrants. Prisons are full of poor and poorly educated people.
    Guess what immigrants have a huge number of? Poor and poorly educated people. It’s no wonder a disproportional number of them is put into prison.

    The problem is not Islam. It’s poverty, poor socialization, lack of education and so on.

    One can use the numbers you give to argue against immigration on a general basis, and I’d agree with that argument (to a point). Bringing poor, hopeless people into the country makes the country poorer and more hopeless. Giving them welfare and education, increasing police forces and social workers costs money. No surprises there.

    But that’s a point about economics, not about religion.

    Banning visitors (with valid Visas!) because of the majority religion of their home country is just plain discrimination, and it doesn’t work. It’s punitive and not well thought out. Actions like that aggravate and support radicals.

  13. Bernd Lauert Mo 6 Feb 2017 at 15:37 - Reply

    @ Leser:

    I am suggesting halting muslim immigration. What are you suggesting? No stop to muslim immigration although you are aware of the dangers?

    „The problem is not Islam. It’s poverty, poor socialization, lack of education and so on.“

    That’s a question of the hen and the egg: Why are muslims on average not interested in education and socialization? Why are dominantly muslim countries underperforming in every index in that regard: low education, high corruption, low GDP and growth, barely any inventions (e.g. almost no patent applications from muslim countries) and academic achievements (e.g. almost no muslim noble prize winners). I could go on, but you get the point.

    It is a common thread in western (christian) culture to always look for flaws in one’s own culture first and disregard flaws in others. But this urge should always be second to another great achievement of western culture: reason and scrutiny.

  14. Leser Mo 6 Feb 2017 at 20:09 - Reply

    Please, read up on the difference between correlation and causation. You seem to be confusing that.

  15. Bernd Lauert Mo 6 Feb 2017 at 20:54 - Reply

    „Please, read up on the difference between correlation and causation. You seem to be confusing that.“

    Not an argument. Provide a better explanation instead.

  16. Maria Di 7 Feb 2017 at 19:46 - Reply

    @Bernd Lauert
    Your very derogatory remarks on Islam and Muslims are simply disgusting. You really want to make people believe that the right-wing newspaper from Axel Springer „Die Welt“ is actually a non-biased source for facts about Islam and Muslims??
    It’s outrageous, misleading and wrong when you claim that „Muslims commit 66 % of terror acts“. The article you are citing has no proof for this alternative fact. Instead, it refers to the „The Global Peace Index“, which you obviously did not read (people like you prefer to simply copy and paste links without thinking, as long as the „facts“ fit into your hateful agenda).
    Firstly, it states, that 80 % of terror attacks occur in five, mainly war-torn countries (Iraq, Afghanistan, Pakistan, Nigeria and Syria). You call it terror, I call it WAR! It goes without saying that nearly 100 % of terror victims are Muslim!
    The report does NOT draw a link between religion and terror. Instead, terror is closely associated „political violence
    committed by the state and the existence of a broader armed conflict. The link between these two factors and terrorism is so strong that less than 0.6 per cent of all terrorist attacks have occurred in countries without any ongoing conflict and any form of political terror“. It further calls „socio-economic factors such as youth unemployment“ or drug crime as the most relevant reasons for terror (p. 3).
    Terror is conducted by five major terror organization – none of which is Islamic, but rather, they are Islamist, which is NOT the same.

    As for western countries, the report clearly states that „80 per cent of deaths in the West from lone wolf attacks [are] being attributed to a mixture of right wing
    extremists, nationalists, anti-government elements, other types of political extremism and supremacism“ (Global Terrorism Index, p. 3).

    I wonder what you actually intend by blaming Muslims for terror and even for all kinds of crime in Germany? Your claim, that the majority of rapists is so disgusting and wrong, it is even not worth commenting, as you deliberately confuse nationality with religion. Do feel better because you incite hatred against a whole group of believers? Do really wish for even more violence against Muslims and people who look like Muslims (Sikhs, Indians…)? You should feel ashamed for twisting the facts! Just think before you speak, you might regret the consequences!

  17. Maria Di 7 Feb 2017 at 19:59 - Reply

    According to Bernd Lauerts „logic“, Europe should ban nationalists and political extremists like you first, if it wants to remain peaceful. Just think about it, very easy, it is called Kant’s Moral Philosophy. Ever heard of that?

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