Unconstitutionality of the Muslim Ban: The Targeting of the Huddled Masses

Attorney General Sally Yates was unceremoniously fired by the Trump administration after she ordered Department of Justice lawyers not to defend the executive order that banned citizens from seven Muslim-majority countries and refugees from around the world from entering the United States. Along with banning citizens from the seven countries, the executive order also specifically established preferential treatment for citizens of those affected nations who identify with the “minority religions.” The order stranded travelers around the world and incited thousands to take to the streets in protest around the country.

Why did AG Sally Yates Refuse to Defend the Order?

Attorney General Sally Yates worked in the Department of Justice for twenty-seven years for both Republican and Democratic administrations, and had a reputation of being “above politics.” She was actually asked to stay on during the transition by Trump’s administration.

Following the release of the executive order on January 27, Yates refused to defend the order because her analysis concluded that the executive order was unconstitutional:
“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible but is informed by our best view of what the law is after consideration of all the facts…At the present, I am not convinced that the defense of the executive order is consistent with these responsibilities, nor am I convinced that the executive order is lawful.”
This refusal was in line with her unwavering affirmation during her Senate Confirmation hearing in 2015 when (ironically) Trump’s AG designee Jeff Sessions asked her if she would stand up to the President if she believed that his actions were unlawful.

Many agree with Yates’ legal analysis of the executive order, and legal challenges have been filed in numerous states including Virginia, New York, Massachusetts, Washington, and California.

What Does The First Amendment Protect?

The First Amendment requires that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In the United States Supreme Court case of Lynch v. Donnelly, Justice O’Connor explained “that the government must not make a person’s religious beliefs relevant to his or her standing in the political community by conveying a message ‘that religion or a particular religious belief is favored or preferred.’” The Court stated in Larsen v. Valente that the “history and logic of the Establishment Clause [mean] that no State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” In sum, the First Amendment requires the government to exercise authority in a religiously neutral way.

Therefore, a key purpose of the First Amendment freedom of religion is to prevent the government from making those who are not part of a favored religion feel unwelcome. It is almost undeniable that the executive order and the rhetoric surround it has done just that.

How Does The First Amendment Protection Apply To The Executive Order?

While the ban is facially neutral in that it doesn’t mention “Muslim” or “Islam” specifically, there are a number of specific pieces of evidence that prove that the order is unconstitutional because the intent of the order was to specifically ban Muslims, in violation of the First Amendment.

First, and most obvious, the ban only targets majority-Muslim states but specifically provides for preferential treatment for those who practice “minority religions.” This was confirmed by Trump in an interview with the Christian Broadcasting Network on the day the order was issued, when he specially stated that they will be giving Christians preferential treatment under the order. This by itself is a constitutional violation, as it is firmly established that it is unconstitutional to discriminate among religious groups and assign preference to one religion over another.

Second, Rudy Giuliani actually told Fox News the day after the executive order was signed that Trump had previously told him that he wanted to implement a “Muslim ban” and requested that he find a way to “do it legally.”

Third, on the Trump campaign had issued a press release in December 2015 that stated that: “Donald Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” This rhetoric and promise of a “Muslim Ban” a year ago speaks directly to his intent in passing this order within his first week in office.

Fourth, Trump has made numerous statements regarding the need for Muslims to be required to legally register, NBC News in November 2015, specifically has commented on the problem that he sees of “Muslims coming into the country” (March 2016), and admitted that he was revamping the proposal designed to target Muslims (NBC in July 2016).

This evidence of Trump’s invidious intent supports the finding that the executive order violated the protections guaranteed by the First Amendment. He has stated numerous times on the record that he is planning to ban Muslims, and he explicitly stated that the order would be giving preference to a specific religion.

This executive order is an affront to the United States Constitution and the values for which we hold dear, and is an attack specifically on those who the United States has always protected, as inscribed on the Statute of Liberty: “your tired, your poor, your huddled masses yearning to breathe free.”