Earlier this month, Derrick Watson, a federal judge in Hawaii, placed another block in the path of President Trump’s now notorious travel ban. The Hawaii court issued a 43-page document outlining its case against Trump’s revised Executive Order, which restricts movement from six Muslim-majority countries to America. The document argues that Trump’s policy runs afoul of the US Constitution. The ban has now been suspended indefinitely.
According to Watson, Trump’s ban violates the equal protection clause of the First Amendment in the Bill of Rights, which bars religious-based discrimination. But Trump’s order does not explicitly discriminate against one religion. The ban covers six (after Iraq was dropped) largely Muslim countries, but it does not explicitly exclude Muslims. To get around this fact, Watson constructs various questionable arguments.
First he says that based on Trump’s previous statements, particularly during his election campaign, it can be reasonably discerned that the travel ban is aimed at Muslims. Many commentators have already taken issue with this, disputing whether Trump’s own comments can be used as evidence that his later order is unconstitutional. Whatever Trump may have said, the law must be assessed on its merits alone, they say.
This seems right. But there’s a further problem with the argument that the order discriminates against Muslims. The US Constitution does not guarantee the rights of non-citizens. It covers the rights of American people, not of people from other countries. So in impacting on foreign people, how can Trump’s order be unconstitutional? Watson deploys another argument: if the ban is aimed at Muslims abroad, he says, then it will likely lead to a situation where Muslims within the US also have their rights violated.
As the Hawaiian court ruling notes, ‘By singling out nationals from six predominantly Muslim countries, [the] Executive Order causes harm by stigmatising not only immigrants and refugees, but also Muslim citizens of the United States’. Alongside creating, in the words of one plaintiff in Watson’s document, ‘the perception that the government has established a disfavoured religion’, the order also denies American Muslims ‘their right… to associate with family members overseas on the basis of their religion and national origin’.