A Ban by Another Name

There was the expectation that Presidential Travel Ban 2.0 would be upheld as constitutional.

As NPR reports, it was specifically amended to address previous concerns: “It omitted Iraq from the list of barred countries, removed references to religion and excluded green card holders and people who already had visas, among other changes.”

So it was surprising – perhaps even shocking – when a judge in Hawaii issued a temporary restraining order and a judge in Maryland soon after issued a preliminary injunction; both of which blocked the nationwide implementation of the ban.

Proponents of the ban howled at it’s continued blockage; opponents celebrated the victory; and reasonable people from both sides wondered what was constitutionally right in terms of future present beyond the scope of this immediate issue.

The U.S. Department of Justice believes strongly that the ban is legal – indeed, they revised the previous Executive Order language with the explicit goal of issuing an order that would stand up in court. Proponents of the ban further argue that the judges who have moved to block it have overstepped their judicial bounds; issuing rulings from partisan passions rather than from the blind legal ideal.

But Judge Derrick K. Watson – the U.S. District Court judge from Hawaii who issued a temporary ban – sees the matter differently. Watson argues that he was simply considering the wider context, something which is fully within his legal purview to do.

As NPR describes: “The judge concluded, based on the historical context of the travel ban and public statements made by the president, that “a reasonable, objective observer … would conclude that the Executive Order was issued with a purpose to disfavor a particular religion[.]””

In other words, it doesn’t matter if the specific wording of the new order is carefully crafted to be technically constitutional: it’s the implementation and spirit that is everything.

While this defense may ring of judicial overreaching, I’m inclined to favor the judge’s interpretation – and I’m fairly confident my opinion isn’t simply due to my own distaste for the order.

President Trump himself has made it clear that he favors a “Muslim ban,” that he wants to block people from a specific religious group from entering the country. The injunctions against this ban say, in no uncertain terms, that such a goal is unconstitutional, no matter how you dress it up.

In the days following the initial travel ban order, there was chaos and confusion as people tried to figure out what was going on. Lacking clarity from the order itself, those tasked with the actual enforcement of the ban had a lot of leeway in how it was interpreted and how it was carried out.

There is nothing to prevent a Muslim ban which is gracefully worded to avoid the word Muslim from becoming exactly what it is intended to be. The letter of the law doesn’t need to read “Muslim,” but as long as the intent is clear – as long as there’s the risk of unconstitutional treatment at our borders – such a ban is and should be considered unconstitutional. A little window dressing doesn’t change that.

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