Eleanor Finch
Former US President Donald Trump's travel ban, which restricted entry into the United States by foreign nationals from several countries, has been widely criticized and challenged in court. The ban has been labeled as discriminatory, particularly towards Muslims, and has been argued to violate the Establishment Clause of the First Amendment and the Immigration and Nationality Act. While lower courts initially blocked the ban, the Supreme Court allowed it to go into effect, setting a high bar for constitutional challenges. The ban has undergone several iterations, with the third version facing legal challenges in both the Hawaii and Maryland courts, which concluded that it violated immigration statutes and the Establishment Clause. The Supreme Court is set to hear arguments on the legality of the ban, with challenges focusing on constitutional and statutory grounds.
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What You'll Learn
- Trump's anti-Muslim comments and past statements as evidence of the order's discriminatory nature
- The ban's violation of the Establishment Clause of the First Amendment
- The ban's violation of the dormant commerce clause
- The ban's discriminatory nature against Muslim-majority countries
- The ban's violation of the Immigration and Nationality Act
Trump's anti-Muslim comments and past statements as evidence of the order's discriminatory nature
Trump's travel ban has been criticised as being discriminatory towards Muslims, with the state of Hawaii bringing a civil action challenging the executive order and asking for a declaratory judgment and an injunction halting the order.
Trump's past comments and statements have been used as evidence to support the claim that the travel ban is discriminatory. For example, in 2016, Trump gave a speech entitled "Understanding the Threat: Radical Islam and the Age of Terror", in which he advocated for a temporary ban on Muslims entering the US and instituted a "watch list" for those already in the country. He has also repeatedly warned of the dangers of "radical Islamic terrorism", a term that has been interpreted as a direct rebuke of former President Barack Obama, who refused to use the term. Trump has also criticised Obama and Hillary Clinton, accusing them of being "founders" of the so-called Islamic State. Furthermore, Trump has publicly feuded with the parents of a Muslim US soldier killed in Iraq.
Trump's advisers have also made anti-Muslim comments, with National Security Advisor Michael Flynn referring to Islam as a "political ideology" that "hides behind this notion of it being a religion". Flynn has also compared Islam to "a malignant cancer" and tweeted that a fear of Muslims is "rational". Attorney General nominee Jeff Sessions has also made similar comments, stating that there is a "toxic ideology...within Islam".
Despite these statements, Judge Trenga refused to use the President's past comments as evidence of the order's discriminatory nature. However, Justice Stephen Breyer wrote that if the government is not applying the Proclamation's exemption and waiver system, the claim that the Proclamation is a "Muslim ban" becomes much stronger. Indeed, government statistics show that waivers from the ban are being granted at a very low rate (2.5% as of April 30).
In addition to the discriminatory nature of the ban, there is also a range of other evidence that suggests the travel ban violates the Establishment Clause of the United States Constitution. For example, no citizen from the countries on the banned list has ever committed a terrorist attack in the USA. Furthermore, the ban only applies to business and tourist visas for certain government officials from Venezuela and their immediate family members, and very few people from North Korea would likely be able to obtain authorisation to travel to the US even without the ban in place.
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The ban's violation of the Establishment Clause of the First Amendment
Trump's travel ban has been challenged in court several times, with critics arguing that it violates the Establishment Clause of the First Amendment to the US Constitution. The ban has been labelled a "Muslim ban" by Trump himself, his aides, and critics, as it predominantly affects Muslim-majority countries.
The Establishment Clause prohibits the government from establishing an official religion or favouring one religion over another. It also forbids the government from enacting policies that unduly burden the free exercise of religion. The travel ban, which restricted entry into the United States by foreign nationals from certain countries, was challenged on the basis that it disproportionately impacted Muslims and was motivated by religious discrimination.
In the case of Trump v. Hawaii, the Supreme Court considered whether the travel ban violated the Establishment Clause. The Court held that the ban did not violate the Constitution, citing national security concerns. However, lower courts, such as the Maryland District Court, had previously blocked the ban on constitutional grounds, specifically citing a violation of the Establishment Clause.
The inclusion of non-predominantly Muslim countries in the ban has been criticised as a red herring, as very few people from those countries would be affected in practice. Additionally, the ban has been criticised for not meeting the requirements of a deferential test, with public information and the President's anti-Muslim comments suggesting that the ban is a “Muslim ban” rather than a security-based ban.
The travel ban has faced widespread opposition, with legal challenges, protests, and criticism from various organisations and individuals. The ban's constitutionality remains a highly contested issue, with ongoing debates and discussions surrounding its potential violation of the Establishment Clause of the First Amendment.
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The ban's violation of the dormant commerce clause
Trump's travel ban has been widely criticised and challenged in court for its legal and constitutional issues. The ban affects several Muslim-majority countries and has been labelled by critics as a "Muslim ban".
The dormant commerce clause is inferred from the Constitution's commerce clause, which states that, because Congress has the power to regulate interstate commerce, individual states may not discriminate against or unduly burden such commerce.
Trump's travel ban affects interstate commerce by restricting travel to and from certain countries, which in turn impacts the flow of goods and services. The ban could also be seen as discriminatory, as it targets countries with predominantly Muslim populations. This discrimination could be considered an undue burden on interstate commerce, as it restricts the flow of goods and services based on religious affiliation.
The Supreme Court has considered the dormant commerce clause in the context of state sales tax obligations on remote retailers. While the justices did not find a violation of the dormant commerce clause in that case, the Trump travel ban presents a different scenario with potential discrimination and burden on interstate commerce based on religious grounds.
The ban's impact on interstate commerce and its potential discriminatory nature raise serious questions about its compatibility with the dormant commerce clause. The Supreme Court's decision to allow the ban to take effect while legal challenges continued suggests a highly deferential stance towards the government. However, the lower courts' rulings and the public information undermining the administration's stated policy goals provide a substantial basis for claims that the ban violates the dormant commerce clause.
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The ban's discriminatory nature against Muslim-majority countries
Trump's travel ban has been widely criticised as discriminatory against Muslim-majority countries and their nationals. The first ban, imposed in January 2017, restricted entry from seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This was later revised to include six countries, removing Sudan and adding Chad.
The ban has been labelled a "Muslim ban" by critics, the media, and Trump himself. The text of the first ban was lifted almost verbatim from a 2016 speech by then-candidate Trump entitled "Understanding the Threat: Radical Islam and the Age of Terror". The ban's discriminatory nature is further evidenced by the inclusion of non-predominantly Muslim countries, which some argue is a red herring, as very few people from those countries would be affected.
The ban has been challenged in court on constitutional grounds, with lower courts finding legal and constitutional failures. The Supreme Court, however, allowed the ban to go into effect while it reviewed the decision. The inclusion of certain countries and the impact on Muslim nationals has been a key point of contention. The state of Hawaii, for example, brought a civil action challenging the ban as a "Muslim Ban 2.0", arguing that it targeted immigrants and refugees under the pretense of national security.
The waivers and exemptions in the ban have also been criticised as being granted at an infinitesimal rate, further supporting the argument that the ban disproportionately affects Muslim-majority countries and their nationals. The ban's discriminatory nature has been a central issue in the legal challenges, with the Maryland court focusing on the likelihood that the ban violates the Establishment Clause of the First Amendment to the US Constitution.
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The ban's violation of the Immigration and Nationality Act
Trump's travel ban, imposed through a series of executive orders, has been widely criticised as discriminatory and in violation of the Immigration and Nationality Act (INA). The ban predominantly affected Muslim-majority countries and was challenged in court by organisations such as the ACLU-WA, which argued that the ban violated the INA and federal law.
The INA, enacted in 1952, establishes the laws regarding immigration, naturalisation, and nationality in the United States. It grants the President the authority to suspend or restrict the entry of certain aliens into the country under specific circumstances. However, Trump's travel ban has been criticised for misusing this authority and for targeting Muslim nationals.
The first travel ban, imposed on January 27, 2017, through Executive Order 13769, restricted travel from seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This ban was blocked by a temporary restraining order in Washington v. Trump on February 3, 2017. The Trump administration declined to defend this order in court.
The second travel ban, issued on March 6, 2017, through Executive Order 13780, replaced the original ban and imposed restrictions on Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. This ban was also challenged in court, with the federal court in Maryland blocking the 90-day ban on immigration from six Muslim-majority countries.
The third travel ban, announced on September 24, 2017, designated eight countries for partial or full restrictions on entry to the United States, including Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. This ban was also met with legal challenges, with the Hawaii court arguing that it violated the INA by denying immigrant visas based on nationality.
While the Supreme Court upheld most provisions of the third version of the ban, the ongoing debate and legal challenges highlight the concerns over the ban's potential violation of the INA and its discriminatory nature.
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Frequently asked questions
Trump's travel ban refers to several executive actions taken by former President Donald Trump restricting entry into the United States by certain foreign nationals.
Trump's travel ban has been criticised for targeting Muslim-majority countries and discriminating on the basis of religion, in violation of the Establishment Clause of the First Amendment to the US Constitution.
Trump's travel ban has faced numerous legal challenges in lower courts and the Supreme Court, including IRAP v. Trump, Hawaii v. Trump, and Washington v. Trump. The Supreme Court upheld the administration's ban, but it was later revoked by President Joe Biden in 2021.
The original travel ban included seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Later versions of the ban added countries such as North Korea, Venezuela, and Chad.
