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Ban: What Happens
Trump’s tweets and declarations could become evidence in court of what he intends to accomplish with the order.
In December 2015, responding to the San Bernardino shootings that killed 14 people, Trump called for a “total
and complete shutdown of Muslims entering the United States,” a position he tweaked a few months later by
suggesting that immigration be suspended from “any nation that has been compromised by terrorism.”
Trump’s argument that the order wasn’t about religion may have been undermined by former New York Mayor
Rudy Giuliani, who told Fox News on Jan. 28 that Trump wanted a “Muslim ban” and asked him to assemble a
commission to figure out how to do it legally. Giuliani said the commission recommended the order focus not on
religion but on “areas of the world that create danger for us. ... Perfectly legal, perfectly sensible.”
Theodore Ruger, dean of the University of Pennsylvania Law School, says Trump’s comments that the order
doesn’t target Muslims may be immaterial. “It’s possible to challenge government action as discriminatory to a
particular religion even if there’s no mention of that religion,” says Ruger.
Justice Department lawyers defending the executive order can argue that federal law gives the president broad
authority to exclude noncitizens “who would be detrimental to the interests of the United States.” “No judge can
look at the order and analyze it as a Muslim ban because the vast majority of Muslims around the world are not
affected,” says Jonathan Turley, a law professor at George Washington University. Eugene Volokh, a professor at
UCLA School of Law, says that judges could interpret the order as targeting people from countries where “jihadist
sentiments” are common, which could give Trump legal cover.
Ironically, Democrats, in fighting the order, may echo concerns voiced repeatedly by Republicans under the
Obama administration that the executive branch exerts too much power. Republican-led states frequently sued the
federal government over President Obama’s executive orders on pollution regulation, overtime pay, and
immigration policy. In 2014, Texas led an attack on Obama’s immigration reforms, which would have sheltered
more than 4 million undocumented immigrants from deportation and provided them with work permits that could
have led to federal benefits such as Medicaid and Social Security.
The federal judge presiding over the case said he doubted Obama had the authority to unilaterally alter
immigration policy and blocked the programs until he could decide if they were legal. A deadlocked Supreme Court
refused to lift the injunction last summer, effectively ending the case.
Typically Congress sets long-term immigration policy and could reject Trump’s immigration ban. That’s unlikely with
a Republican majority in both houses. Some GOP senators, however, including John McCain of Arizona, Bob
Corker of Tennessee, and Lindsey Graham of South Carolina, have criticized the order for being hastily
implemented and for sending the wrong message to allied countries.
The Senate’s consideration of the Gorsuch nomination will undoubtedly be complicated by the immigration order.
Gorsuch, 49, has served on the federal appeals court in Denver since 2006. His best-known cases were religious-
rights disputes that ultimately reached the Supreme Court. Gorsuch sided with Hobby Lobby Stores, whose owners
objected to providing birth-control coverage required under Obamacare. But Gorsuch is a critic of a Reagan-era
judicial doctrine that helped bolster the power of the executive branch.
This original article can be found here: