Anvay Tewari

Within hours of its passage, President Donald Trump’s executive order limiting immigration from seven majority-Muslim countries and banning refugees drew immense controversy and incited protests around the country. District court judges in New York, Boston, Virginia and Seattle issued decisions blocking parts of the executive order, while the country’s top law enforcement official, acting Attorney General Sally Yates, was fired for refusing to defend the ban.

Central to the fallout is the question of the constitutionality of Trump’s recent order. In interviews with the News, nine law professors from Yale and beyond refuted Trump’s argument for national security and seven called the order at least partially unconstitutional.

“What happened is mean and inhumane,” said Peter Edelman, law professor at Georgetown Law School who served in the secretary of health and human services under the Clinton administration. “Adding bad intentions to gross incompetence produced havoc. Along with the grave constitutional and other legal questions, the utterly arbitrary detention this past weekend reminds one of Korematsu. We thought we had said never again.”

Erwin Chemerinsky, a prominent scholar in constitutional law and dean of the University of California, Irvine School of Law, said the order is illegal because it runs afoul of the 1965 Immigration and Nationality Act, which abolished the quota system for citizenship based on national origins. And in a Saturday email to the News, former Yale Law School Dean Harold Koh called the order “motivated by discrimination” based on national origin and religion.

“It is unconstitutional to discriminate based on religion,” Chemerinsky said. “It is inhumane in denying entry to refugees.”

The Constitution

Trump’s executive order denies entry to Syrian refugees indefinitely, suspends admissions of refugees for 120 days and bars citizens from seven Muslim-majority countries from entering United States for 90 days. The contention surrounding the order’s constitutionality focuses on whether the affected Muslims were banned on the basis of their religion.

Laurence Tribe, a professor of constitutional law at Harvard Law School, said the ban’s explicit carve-out to protect Christians as a specific minority in the seven countries — rather than protecting all religious minorities, such as Sunni or Shiite Muslims when they are outnumbered — serves as a proof that the order is unconstitutional.

“The ban is a religious gerrymander that violates the First Amendment’s Establishment Clause,” Tribe said. “And that’s just one of its glaring legal infirmities.”

Tribe received national attention when he joined a legal team suing Trump for his ownership of the Trump Organization earlier. The suit alleged that the transactions between foreign governments and Trump’s business holdings violated the Emoluments Clause of the Constitution, which prevents individuals holding office from accepting any present or emolument from any foreign state.

Michael Dorf, a professor at Cornell Law School and a legal commentator who specializes in constitutional law, said the order represents a violation of the Free Exercise and Establishment clauses of the First Amendment, which protects free expression of religion, as well as the equal protection component of the Fifth Amendment’s Due Process Clause.

“Given the history of the order and the recent statement by Rudy Giuliani, there is ample evidence that its goal is to limit Muslims entering into the U.S.,” Dorf said. “It is true, of course, that the order does not bar all or even most Muslims and that it also applies to non-Muslim nationals of the listed countries, but that does not alter the bottom line.” Giuliani has told the media that Trump referred to the order as the “Muslim ban” in their conversation.

Citing relevant legal precedents, Dorf explained that any law or policy that has a disparate impact on a group defined by a “suspect characteristic,” such as religion, and that was adopted for the purpose of that disparate impact is unconstitutional.

Yet Dorf recognized limits on the court’s ability to order relief to noncitizens outside the U.S. when noncitizens challenge their exclusion from the country.

“However, the president is under a duty to abide by the Constitution even, one might say especially, when the courts leave the relevant area to him,” Dorf said.

Jamal Greene LAW ’05, a professor at Columbia Law School, agreed that federal laws give the president “tremendous latitude” over immigration policy but the order is still constitutionally dubious.

Although on its face, the order does not single out the Muslim religion, Trump’s public statements prior to and after issuing the order indicate its discriminatory intention, which Greene called “constitutionally intolerable.”

Aside from the question of constitutionality, other law professors also pointed to problems with the general legality of the ban.

“The 1965 statute, which is really the basis of our immigration policy, has a specific provision barring discrimination on the basis of national origin that can’t be modified by executive order,” Philip Bobbitt LAW ’75, a professor at Yale Law School said, referring to the 1965 Immigration and Nationality Act.

National Security

In a statement released Sunday afternoon responding to the massive protests escalating across the country, Trump said the ban is “not a Muslim ban” — instead, “this is about terror and keeping our country safe.”

Yet, experts said the ban’s value to national security is minimal, citing the arbitrary selection of affected countries and a rigorous vetting process for refugees already in place.

“There is no linkage between immigrants from these countries and terrorism in the U.S.” said Adam Winkler, a professor of constitutional law at Georgetown.

Cristina Rodríguez ’95 LAW ’00, a law professor at Yale who specializes in immigration law and policy, among other things, said refugees who have been cleared have gone through rigorous, sometimes multiyear process of investigation.

Trump has said he and his team will come up with a stricter vetting process in the 90-day window, but Rodríguez doubted the efficacy of any potential additions to existing policy.

For example, she suspected that Trump could impose ideological check to ensure that immigrants share “the same values as Americans,” but such “amorphous” requirements do not help boost national security.

Without any positive influence on the refugee screening process, experts argued that the imposition of the ban has rendered U.S. relations with allies perilous.

“Just as a matter of policy, this seems like a very clumsy way to build a global alliance against Islamic terror,” Bobbitt said. “This is much more likely to alienate our allies and isolate our friends in the affected regions.”

With four district court justices already taking action to block the implementation of the order, there seems to be hope for further legal challenges on the order. With Trump’s Tuesday night announcement of Neil Gorsuch as his Supreme Court nominee, the highest court in the land will likely have a conservative majority for years to come.

Yet moral compass may outweigh party lines, argued Yale Law School professor Owen Fiss, one of the most-cited legal scholars in constitutional law.

“My own view is that the violations are so flagrant that in both of these cases that it won’t be just the liberal wing of the court that responds,” Fiss said. “I imagine John Roberts, the chief justice, will be horrified by the grossness of these violations. Sometimes things get so bad that everyone responds. And I don’t think John Roberts wants to go down in history as being a kind of tool of Trump.”

  • John Dingle Barry

    The democrats have been reduced to fake weeping and calling people meanies, it’s a great new time in America!

    • yaleyeah

      No, they’ve escalated to burning down campuses now.

    • charliewalls

      Your username and words would make a great political cartoon! I spent an hour yesterday, in Europe, chatting with an 8 year old English/Iranian school girl. She speaks English, Farsi and French. Has charm, good nature; is bright and looking forward to a new puppy. There must be tens of thousands like her who the ban could exclude — had she and her family any interest in entering America.

      • John Dingle Barry

        cool story bro.

  • yaleyeah

    Violates the Establishment Clause!!! LOL — “Congress shall make no law respecting the establishment of a religion or prohibiting the free exercise thereof.” This is the EC, folks. It’s all the Constitution says on the subject. Good luck trying to parse this into a lawsuit over immigration.

    • http://lmgtfy.com/?q=honest+citizen Honest Citizen

      Co2

  • 100wattlightbulb

    Question it all you want. there is precedent and it’s legal AND moral.

  • Nancy Morris

    Regardless of whether one likes or does not like the president’s Order, its putative Constitutional infirmities are liberal pipe dreams and these academics just embarrass themselves and their respective institutions.

    It is noteworthy that none of those quoted here as condemning the Order (including Owen Fiss’s claim that it “flagrantly” violates federal law) actually explain what Constitutional provisions are supposedly violated and the theory undergirding their concerns. Perhaps most amazingly, nothing here indicates these supposed Constitutional scholars recognize the basic fact that foreign nationals on foreign soil have essentially no Constitutional rights. To the extent those quoted here provide any reasoned basis for their Constitutional outrage, to read these quotes, one would think that Iran were a county in New Jersey.

    The understanding of relevant statutory law expressed here is also bizarrely and dishonestly attenuated. In particular, Philip Bobbitt embarrasses Yale Law School with his absolutist claim that the provision of 1965 Act to which he refers bars the president’s Order. That statute concerns general immigration procedures, not matters pertaining to national security. A 1952 statute addressing immigration and national security specifically grants to the president authority to exclude any class of people he finds adverse to the interests of the United States. That 1952 statute has not been superseded. Further, it is extremely unlikely that the SCOTUS would permit ANY statute to abrogate the president’s inherent Constitutional right to insure national security, and they are certainly not going to impute such an abrogation occurred sub silencio in a later statute. And beyond that, there is a THIRD statute signed by Obama that supports this Order. Nor has the 1965 statute EVER been construed the way Bobbitt claims: Carter banned Iranians and Obama barred Iraqis. For Bobbitt to omit all mention of such contrary factors (and there are more) is naked lying by omission on his part.

    It is no accident that this article in fact reports on nothing more than policy differences. The policy preferences of these academics are not retroactively incorporated into the Constitution and federal statutes, they were rejected in November’s election. Get over it.

    • ldffly

      I am not a lawyer, but I have at least made the effort to read the ’65 Immigration and Naturalization Act. I am very much aware of the special authority granted to the President in these matters. It’s in law. Yet, these law professors appear not to be aware of it, or they appear to believe that this authority has been extinguished by some alien force. Unbelievable. I wouldn’t hire these guys to fight a traffic ticket for me.

      • Nancy Morris

        The tragedy of Trump Derangement Syndrome!

        In some cases the symptoms are so severe that one wonders if there is induced organic damage to the brain. So sad.

        • wonder_woman

          Yes, Trump certainly is deranged.

          • Nancy Morris

            You have early onset TDS symptoms and may want to have yourself tested. TDS causes tragically shrunken minds and constant outrage in its victims. TDS is carried by Nytwp mosquitoes, which breed in the intellectual stagnantion of your neighborhood.

  • concerned

    Please contact the ICE union through their contact page and tell them how disgusting their recent airport deportation activities are.
    http://iceunion.org/

    • yaleyeah

      Who got deported at an airport? I didn’t hear of anyone?

  • Mark Wilk

    What I see in this and other articles; including the comments, mostly fit in two categories: (1) if you like Trump it is within his Constitutional and legal rights, or (2) if you hate Trump then it is all hogwash! I am concern about how the order is employed, but what concerns me the most is the apparent unwillingness to acknowledge the threat we have been under since the 1990’s. In the mid-1990’s a non-state organization declared war on America and an unrecognized government that is based on multiple nationalities declared hostile intent on Americans a few years ago. They want to kill you because you allow young girls to go to school, to drive cars, or not wear a hijab. I am not saying this applies to the majority of Muslims, but what I am saying this small portion of folks have killed because you and others are not like them. I lived overseas in the early 1990’s and was a guest in many Muslim countries that were great experiences. But I also saw the violence wrought by these groups; the 1998 embassy bombings, the Cole attack, and 9/11 were just a couple more acts in a long line of attacks. And they will continue for a long time no matter how we treat them. To state that this threat does not exist and has always thrived in destabilized countries just because you hate Trump and/or the Executive Order is intellectual dishonesty. And this attitude could get you or those close to you killed. So both sides of this argument need to apply more intellectual honesty than has been shown.