Muslim Ban: Legal Or Unconstitutional?

On June 26, 2018, the Supreme Court upheld the third iteration of former President Trump's Muslim ban, a policy that restricted travel by most citizens of Libya, Syria, Iran, Yemen, Chad, Somalia, and North Korea. The ban affects around 150 million people, 95% of whom identify as Muslim.

The Supreme Court's decision was met with widespread criticism, with many arguing that the ban violated the First Amendment's Establishment Clause, which prohibits the government from preferring one religion over another. The ban was also criticized for contravening international law, specifically the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

Despite the controversy, the Supreme Court's ruling allowed the ban to be implemented, and as a result, the United States currently prohibits nationals of five Muslim-majority countries (Iran, Libya, Somalia, Syria, and Yemen) from entering the country on most visa types.

Did Trump's Muslim ban violate the Establishment Clause of the First Amendment?

On January 27, 2017, President Donald Trump signed Executive Order 13769, titled "Protecting the Nation from Foreign Terrorist Entry into the United States", which was labelled the "Muslim ban" by Trump himself, his supporters, and critics. The order suspended the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

The Muslim ban was challenged in court by several groups, including the American Civil Liberties Union (ACLU), on the grounds that it violated the Establishment Clause of the First Amendment, among other things. The Establishment Clause prohibits the government from making any law "respecting an establishment of religion" and also forbids the government from singling out any particular religion for disfavour or condemnation.

In January 2017, a U.S. District Judge in the Western District of Washington issued a nationwide restraining order against the ban, which was upheld by the Ninth Circuit Court of Appeals. In response, Trump issued a new order, Executive Order 13780, rather than appealing to the Supreme Court. This new order suspended entry from six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. It did not bar the entry of lawful permanent residents or dual citizens and permitted waivers in individual cases.

In International Refugee Assistance Project v. Trump (No. 17-1351), Chief Judge Roger Gregory of the Fourth U.S. Circuit Court of Appeals ruled that the new order violated the Establishment Clause of the First Amendment. He observed that Trump had issued both executive orders against a backdrop of numerous statements, mostly made during his campaign, in which he had called for a total ban on Muslims and said he would give preferences to Christians. Gregory decided that the harm suffered by the plaintiffs consisted of both the separation from family members and feelings of "marginalization and exclusion" because the order targeted members of their religion.

The Supreme Court, however, did not agree with this ruling. In June 2018, the Supreme Court ruled 5-4 that the ban did not violate the Establishment Clause.

Did the ban disproportionately affect rural areas and underprovided specialties?

The Muslim ban, or Executive Order 13769, was an executive order by President Trump that blocked entry to the US for people from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The order was in effect from January 27, 2017, until March 6, 2017, when it was superseded by Executive Order 13780.

Some sources state that the executive order, if upheld, would have likely contributed to a doctor shortage in the United States, disproportionately affecting rural areas and underprovided specialties. This is because around 5% of foreign-trained physicians in the US were trained in the seven countries targeted by the ban. These doctors are more likely to practice in rural, underserved regions and specialties facing a shortage of practitioners.

The executive order also impacted US industry, with companies like Google, Amazon, and Expedia speaking out against it. The order also contributed to the "Trump Slump" in the US tourism industry, with all foreign tourism down 6.8% and foreign business travel dropping by $185 million during the first week of the immigration suspension.

Did the ban violate Article 18 of the International Covenant on Civil and Political Rights?

The Muslim Ban, or Executive Order 13769, was an executive order signed by President Trump on January 27, 2017. The order banned foreign nationals from seven predominantly Muslim countries from visiting the US for 90 days, suspended the entry of Syrian refugees indefinitely, and prohibited any other refugees from entering the country for 120 days.

The ban was superseded by Executive Order 13780 on March 6, 2017, which was then itself revoked by President Biden on January 20, 2021.

The ban was challenged in court, with critics arguing that it violated the Establishment Clause of the US Constitution, which prohibits the government from establishing an official religion. The ban was also criticised for violating Article 18 of the International Covenant on Civil and Political Rights, which states that:

> "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching."

The ban was seen by many as a violation of this article because it specifically targeted Muslim-majority countries and was labelled as a "Muslim ban" by Trump himself. The ban prevented Muslims from these countries from entering the US, practising their religion, and observing religious traditions with their communities.

In addition, the ban was found to have a disproportionate impact on rural and underserved areas in the US, as approximately 5% of foreign-trained physicians in the country were trained in the seven countries targeted by the ban. These doctors were more likely to work in underserved regions and specialties facing a shortage of practitioners.

As a result of the legal challenges, US district courts in Hawaii and Maryland ordered a halt to the ban, finding that it was an abuse of the president's authority and unconstitutional as it discriminated against Muslims on the basis of their religion.

Did the ban violate the Immigration and Nationality Act of 1965?

The Immigration and Nationality Act of 1965, also known as the Hart-Celler Act, abolished the National Origins Formula, which had been the basis of U.S. immigration policy since the 1920s. The Act removed de facto discrimination against Southern and Eastern Europeans, Asians, and other non-Western and Northern European ethnicities from U.S. immigration policy. It created a seven-category preference system that prioritized relatives and children of U.S. citizens and legal permanent residents, professionals, and other individuals with specialized skills. The Act also set a numerical limit on immigration from the Western Hemisphere for the first time in U.S. history.

Executive Order 13769, commonly known as the "Muslim ban", was an executive order signed by President Trump on January 27, 2017. The order suspended the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This was later reduced to five countries: Iran, Libya, Somalia, Syria, and Yemen.

The Muslim ban was found to violate the Immigration and Nationality Act of 1965 in several ways. Firstly, the Act's seven-category preference system made it illegal to discriminate against individuals based on nationality and religion when obtaining visas. The Muslim ban, however, specifically targeted individuals from Muslim-majority countries, with President Trump himself equating the order to a "Muslim ban" on at least 12 occasions.

Secondly, the Act's preference system prioritized individuals with family members already in the United States, and the Muslim ban resulted in families being separated. This was in direct opposition to the Act's intention to promote family reunification.

Lastly, the Act's numerical limit on immigration from the Western Hemisphere included a cap on immigration from Latin American countries, including Mexico. The Muslim ban also included countries from this region, such as Somalia and Yemen, further violating the Act's provisions.

In conclusion, the Muslim ban implemented by President Trump violated the Immigration and Nationality Act of 1965 by discriminating against individuals based on nationality and religion, hindering family reunification, and exceeding the numerical limits on immigration from the Western Hemisphere.

Did the ban violate the 'reasonable observer' test?

The "Muslim ban", officially known as Executive Order 13769, was labelled as such by both critics and supporters of then-US President Donald Trump. The order suspended the entry of citizens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

The reasonable observer test is a component of the Establishment Clause of the US Constitution, which prohibits the government from making laws that establish a national religion. The test asks whether a "reasonable observer" would believe that a government action endorses a particular religion.

In the case of the Muslim ban, critics argued that the order was a form of religious discrimination as it specifically targeted Muslim-majority countries. This perception was heightened by Trump's campaign promise to implement a "total and complete shutdown of Muslims entering the United States".

In addition, the order included exceptions for certain religious minorities, with the State Department giving priority to Syrian Christians over Muslims when granting refugee status. This further suggested that the ban was motivated by religious considerations.

While the Trump administration denied that the order was a "Muslim ban", the US District Court for the District of Hawaii found that the state of Hawaii was likely to succeed in its challenge to the order on the basis of the Establishment Clause. The court applied the reasonable observer test and concluded that the order was likely to be seen as endorsing Christianity over Islam.

The US Supreme Court ultimately upheld the third version of the executive order, but it is important to note that the Court's decision did not address the Establishment Clause issue. The Court's ruling was based on other constitutional and statutory grounds, leaving the question of whether the ban violated the reasonable observer test unresolved.

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