ANTI-ESTABLISHMENT CLAUSE

Rudy Giuliani says Trump asked him how to make a “Muslim ban” legal

Obsession
"America First"
Obsession
"America First"

“It’s not a Muslim ban,” US president Donald Trump told reporters yesterday, speaking of his executive order barring entry to the US for people from seven Muslim-majority countries.

Trump was responding to criticism that the measure targets members of one religion—which, if proved, could render it unconstitutional.

As he signed the executive order on Jan. 27, barring people from Iraq, Syria, Iran, Libya, Yemen, Sudan, and Somalia for 90 days and suspending the entire US refugee program for 120 days, Trump described it as “new vetting measures to keep radical Islamic terrorists out of the United States of America.”

But comments yesterday by former New York City mayor and Trump advisor Rudy Giuliani during an interview on Fox News suggest that the ban, at its origin, was indeed aimed squarely at Muslims as a whole.

“Does the ban have anything to do with religion?,” Giuliani’s interviewer, Fox’s Jeanine Pirro, asks. “How did the president decide the seven countries?”

Giuliani appears to relish the opportunity to recount his role in helping Trump create the ban. “OK, I’ll tell you the whole history of it,” he tells Pirro. He goes on:

So when he first announced it he said “Muslim ban.” He called me up, he said, “Put a commission together. Show me the right way to do it legally.” I put a commission together with judge Mukasey [Michael Mukasey, a former federal judge], with congressman McCaul [Texas Rep. Michael McCaul], Pete King [New York Rep. Peter King], a whole group of other very expert lawyers on this, and what we did is we focused on, instead of religion, danger—areas of the world that create danger for us. Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion, it’s based on places where there are substantial evidence that people are sending terrorists into our country.

Here’s the full interview:

Some are taking Giuliani’s words as an admission that Trump asked him to devise a technically legal approach to achieve his real, unconstitutional, goal: to target and ban Muslims.

As Giuliani points out, during the presidential campaign Trump did indeed speak broadly of banning Muslims, rather than specifically citizens from particular countries linked to terrorism. “Donald J. 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,” his campaign’s “statement on preventing Muslim immigration” released in December of 2015 says. (The statement triggered outrage, even among prominent members of his own party, at the time.)

Suspicion that Friday’s order is intended to target Muslims is also bolstered by Trump’s own promise on the Christian Broadcasting Network (video) to “help” Christians from the Middle East get to America, and the executive order’s favoring of “minority religions” in the Muslim-majority countries mentioned.

This is an important distinction. The US Constitution’s Establishment Clause commands that “one religious denomination cannot be officially preferred over another,” as David Cole, national legal director of the American Civil Liberties Union and a professor at Georgetown University Law Center, pointed out in a blog post:

One of the lowest of many low moments in Donald Trump’s presidential campaign was his December 2015 call for a “total and complete shutdown” of Muslim immigration. The proposal treated as presumptively suspect a religion practiced by about 1.6 billion people worldwide, nearly a quarter of the globe’s population. Trump soon retreated to talk of “extreme vetting,” but never gave up his focus on the religion of Islam. Friday’s executive orders are of a piece with his many anti-Muslim campaign promises.

As I wrote earlier, one of the critical questions with respect to the validity of executive action challenged under the Establishment Clause is its intent and effect; if intended to disfavor a particular religion, it violates the Establishment Clause.

Benjamin Wittes, a senior fellow at the Brookings Institution who is known for defending controversial counterterrorism measures, goes a step further in a blog post that calls Trump’s executive order both “malevolent” and “incompetent”:

When do you do these things? You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.

To be sure, the executive order does not say anything as crass as: “Sec. 14. Burdening Muslim Lives to Make Political Point.” It doesn’t need to. There’s simply no reason in reading it to ignore everything Trump said during the campaign, during which he repeatedly called for a ban on Muslims entering the United States.

Several legal challenges to Trump’s executive order are already in the works, and a federal judge in Brooklyn last night issued an emergency stay, responding to a lawsuit brought by the American Civil Liberties Union.

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