Two federal courts of appeals this week will hear oral arguments about the constitutionality of President Donald Trump’s “travel ban.” They should conclude that the ban violates the First Amendment, but not for the reason the federal district courts gave.
Rather, they should conclude that the ban is unconstitutional because it was motivated by a desire to discriminate against Muslims.
The ban is the second executive order issued by Trump seeking to restrict travel to the United States by those from designated foreign countries. After the 9th U.S. Circuit Court of Appeals upheld a nationwide preliminary injunction of the first version, a new executive order – dubbed “Travel Ban 2.0” – was issued.
Like the prior executive order, the new version bars immigrants from Sudan, Syria, Iran, Libya, Somalia and Yemen for 90 days. It also suspends the entire refugee program for 120 days and caps the total number of refugees admitted this fiscal year at 50,000 instead of 110,000.
Federal district courts in Hawaii and Maryland issued preliminary injunctions against Travel Ban 2.0 on the ground that it likely violates the First Amendment. These courts relied on a somewhat controversial doctrine to reach their decisions – the idea that the government may not “endorse” (or oppose) a particular religion. That doctrine has been repeatedly criticized by a majority of the justices on the Supreme Court.
But the district courts did not reach the wrong result. We have joined a friend of the court brief of constitutional law professors that explains why the travel ban violates one of the most fundamental rules of the First Amendment: The government cannot act on the basis of animus toward any particular religion.
As Justice Anthony Kennedy has explained, the “Establishment Clause cases … state the principle that the First Amendment forbids an official purpose to disapprove of a particular religion.” The anti-animus principle is so deeply woven into our constitutional tradition that it also applies in the context of the First Amendment’s other religion clause, the Free Exercise Clause, as well as the Equal Protection Clause.
The Establishment Clause prohibits the government from making any law respecting the establishment of religion. The anti-animus principle means that the government cannot “signal disfavor” toward particular religious groups or “denigrate” or “proselytize” particular religions.
The anti-animus principle is the right way to think about the travel ban because it captures what is so egregious with the ban. It is simply wrong to presume that a person is more dangerous because of his or her religion, race or national origin.
The anti-animus principle also reflects what the evidence shows. All of the countries subject to the ban have populations that are 90 percent to 99 percent Muslim. As several judges have observed, not one terrorist act in the United States ever has been linked to these countries. The president has also called for a total and complete shutdown of Muslims entering the United States and continues to say the travel ban reflects that plan. Rudy Giuliani, an adviser to Trump, has stated that he and others recommended using nationality as a proxy for religion.
Some have suggested that the anti-Muslim statements by Trump and his advisers are constitutionally irrelevant. Quite the contrary. In other areas where the anti-animus principle operates, it is well-established that an illicit motivation makes a government action unconstitutional, and that statements of government officials demonstrate evidence of their motives.
The anti-animus principle has rarely come up in challenging presidential actions because other presidents have not violated this fundamental principle of our constitutional order. President Donald Trump has, and that’s why the travel order is unconstitutional.
Leah Litman is an assistant professor of law at University of California, Irvine, School of Law. She can be contacted at firstname.lastname@example.org. Erwin Chemerinsky is the founding dean and distinguished professor of law at University of California, Irvine, School of Law. He can be contacted at email@example.com.