//  5/3/17  //  Commentary

Yesterday, we addressed the common misunderstanding that Trump’s revised travel ban has its genesis in a singular campaign promise to ban Muslims from entering the United States.  We showed, instead, that the ban is but one part of Trump’s long, multi-faceted crusade against Muslims.  Here, we address another incorrect belief, floated to one of us by a journalist: that the executive order reflects, at most, animus toward foreign or non-citizen Muslims. 

Our prior discussion should itself eliminate any doubt that Trump’s beliefs about Islam are somehow linked to national borders.  The lies that he has spread about Islam being hateful—and about Muslims celebrating terror—affect American and foreign Muslims alike.  His promises to shutdown U.S. mosques and to profile, surveille, and register the U.S. Muslim population demonstrate that he views Muslims here just as harshly as he views Muslims abroad.  Those promises show that Trump wants to use government to classify (and burden) domestic Muslims based solely on their religion, often in violation of the Religion Clauses.  

There is no meaningful evidence that Trump’s animus can be territorially bounded.

In any event, to ask about the geographic target of Trump’s animus in the executive order is to miss the point.  When the President of the United States issues an order with the main purpose (possibly the sole purpose) of excluding people from this nation because of their religion—and does so either because of his own prejudice or to fulfill an animus-laden campaign promise or both—the resulting harm unquestionably accrues to all adherents of that religion in America. 

Religious liberty can be destroyed just as easily by governmental coercion as by acts to suppress, exclude, or injure a disfavored faith.  As history teaches, what faster way is there to harm a religion than to ban large numbers of its adherents from entering the nation?   

James Madison recognized this point.  In opposing a bill imposing religious assessments, he articulated a principle of broader reach and modern relevance:

[The Bill] degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.  Distant as it may be in its present form from the Inquisition, it differs from it only in degree.  The one is the first step, the other the last in the career of intolerance.  The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent, may offer a more certain repose from his Troubles. 

Madison, Memorial and Remonstrance Against Religious Assessments ¶ 9 (1785). 

When the government takes sides on matters of religion, aligning itself for or against any particular faith and wielding public power to achieve that goal, religious liberty cannot long endure.

Indeed, just ask yourself: if the President issued an order with the goal of excluding a large number of Jews or Catholics or Hindus, and did so out of animus toward those religions or on the basis of group stereotypes about adherents of those faiths, would any Jew or Catholic or Hindu in America feel safe?  Especially if the President had made dozens of statements condemning those religions without any reference to national origin, but instead with reference to the supposed essential nature of those traditions?  

Put simply, when the President makes dozens of statements condemning and disparaging Islam as a whole, promises to ban all Muslims from the United States, enacts an Order explicitly based in that animus-laden campaign promise, and then keeps on describing Muslims as a problem for our country, the notion that we can draw a line between animus toward foreign and domestic Muslims becomes untenable. 

In our next post, we will address the Government and Judge Alex Kozinski’s false comparison between Trump’s promise to exclude Muslims from the U.S. and “imprecise” campaign talk.  

Deferred Reaction To the Courts

6/22/20  //  Commentary

Democratic and Republican responses to the DACA decision illustrate the different focus the two parties put on the federal courts.

Leah Litman

Michigan Law School

Versus Trump: Should Vulnerable Detainees Be Released?

3/27/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss a lawsuit in Seattle, Dawson v. Asher, requesting that several vulnerable people in immigration detention be released. They discuss the legal standard for detention, why detention centers are particularly dangerous places, and what courts will be balancing when they consider these requests for release. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Blame Game

2/18/20  //  Commentary

The administration often tries to foist blame on the courts for its politically unpopular policies--or to have the courts effectuate its politically unpopular policies for the administration.

Leah Litman

Michigan Law School