President Trump’s revised travel ban executive order contains a few improvements relative to the even more blatantly unconstitutional original. But it is still needlessly cruel, and still unconstitutional.
The order inflicts cruel harm on refugees and others, while creating little if any security benefit. Most notably, it still cuts the total intake of refugees for fiscal year 2017 from 110,000 to 50,000. This part of the order is unlikely to be struck down by the courts. But it deserves emphasis nonetheless, because it consigns many thousands of refugees to misery and the risk of death without even a minimally plausible security rationale. The reduction applies to all refugees from anywhere in the world, regardless of whether there is any reason to think they might be security risks or not. The same point applies to the order’s suspension of all refugee admissions for 120 days. That period of time may not seem very long. But for many refugees, it might mean the difference between life and death.
The revised order’s imposition of a temporary travel ban on citizens of six Muslim-majority nations is unconstitutional because its real purpose is religious discrimination against Muslims. Like the original order, the new one is still clearly an outgrowth of Trump’s advocacy of a “Muslim ban,” as admitted by Trump adviser Rudy Giuliani, who played a key role in drafting the first order. Courts have repeatedly ruled that Trump and Giuliani’s anti-Muslim statements are relevant to assessing the constitutionality of the original order. The same should be true of this one.
The weakness of the security rationale for both the original order and the new one makes it more likely that discrimination against Muslims is the true motive behind it. Under the standard legal framework for analyzing such cases, once evidence of discriminatory intent is proven, the government has the burden of showing that it would have adopted the same policy even in the absence of improper motivation. That burden will be extremely difficult to meet in this case.
We urge courts to rule against the new order, as they did with the original one.