President Trump’s recent executive order, banning immigrants from seven Muslim-majority nations, is unconstitutional. It clearly violates the due process rights of Legal Permanent Residents, valid visa holders, and American citizens who travel to the designated countries. Even if President Trump were to issue a new executive order in an attempt to “fix” these infirmities, his travel ban would still be an unconstitutional exercise of his otherwise broad discretion over immigration. This is because an exercise of discretion, however neutral on its face, is unconstitutional if it can be shown to be motivated by racial or religious animus. President Trump’s executive order, even if it were to exempt permanent residents, visa holders, and citizens, would still be an unconstitutional abuse of discretion.
The Supreme Court has long recognized that a seemingly neutral regulation qualifies as unconstitutional discrimination if the true purpose behind it is in fact to target a specific racial, ethnic, or religious group. It applied that principle to racial discrimination as far back as 1886, and more recent decisions apply it to discrimination on the basis of religion, as well.
In some cases, it is difficult to determine the true motive behind a facially neutral law or regulation. This is not one of those difficult situations. Trump adviser Rudy Giuliani has openly stated that the order emerged from the then-president-elect’s directive to implement his “Muslim ban” and find a way to “do it legally.” There are few more blatant cases of pre-textual discrimination. The Supreme Court has recognized that even when it comes to the broadest grants of government power, discretion is not unlimited. An exercise of discretion is an unconstitutional abuse when motivated by racial or religious animus.
In short, President Trump must advance a religiously neutral basis for his executive orders, one which would overcome the evidence of his publicly announced desire for a Muslim travel ban. The Ninth Circuit rightfully denied the President’s motion to stay the temporary restraining order on the implementation of his travel ban, citing the absence of this showing. Failing to do so renders his executive orders an abuse of discretion, and therefore, unconstitutional.