Trump's new travel ban further tests image and rule of law

Emad Mekay, IBA Middle East Correspondent, Cairo

When US President Donald Trump signed his second travel ban executive order, people in the Middle East, the majority of whom are Muslim, saw the move as the US not living up to its own image and reputation as a bastion of law and democracy. In the US, lawyers and activists saw it as another timely test of the country's much cherished system of checks and balances.

The new order, signed early in March, blocks travel to the US by citizens from six Muslim-majority countries on national security grounds. Iran, Libya, Somalia, Sudan, Syria and Yemen are on the list. Iraq, which was on the original list, signed in January, was removed. The new order maintains a 120-day suspension on processing of refugees into the country.

The second order was met by similar scepticism to that which followed the first. It didn't help that it was accompanied by reports of what many rights and immigration lawyers said was ‘unconstitutional and systematic ideological’ questioning of American-Muslim citizens and foreign travellers about their religious values and political views.

It was reported extensively in the Middle East that Muhammad Ali Jr, son of the legendary US boxer, was detained while travelling with his mother, and asked at least twice about his religion at US airports.

Such incidents may be welcome for White supremacists and the small minority of anti-Muslim fringe groups tht appear to have become aligned with the Trump administration. But they do not pass a legal litmus test.

From a legal perspective, there is a near consensus that the latest scaled-back version of the travel ban shares the same flaws as the original Muslim ban that created so much uproar around the world. ‘The genesis of the travel ban was Mr Trump's oft-expressed intention to bar Muslims from the United States,’ said Philip Berkowitz, New York-based Co-Chair of the IBA’s Discrimination and Equality Law Committee and Co-Chair of Littler’s US international practice.‘While the Administration has tried to soften the current version’s language in some respects, nevertheless the President's prior statements, and the courts that have considered the travel ban thus far are declining to pretend that these statements were never made, and therefore concluded that it suffers from precisely the same flaws as the initial one.’

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There are many, including in the US, who believe that what the US president is doing is both illegal and unconstitutional. Worse, the ban actually opens the door for discrimination based on faith and religion and could easily be rehashed to fit people of other faiths. ‘To the extent that the travel ban was implemented in order to discriminate on the basis of faith or religion, it is unlawful and unconstitutional,’ Berkowitz says. ‘While the president's right to oversee the immigration laws is broad, it is not unfettered. He cannot act in an arbitrary manner. Nor can he act in a manner that is contrary to the Constitution or the laws of the United States.’

This is now a significant matter for the US image in the Middle East and across the globe. The US helped pioneer international bodies and human rights charters that forbid religious discrimination in any form. But, the Trump administration risks being viewed  as violating America’s own laws prohibiting religious discrimination.

Omar Jadwat, director of the American Civil Liberties Union's Immigrants’ Rights Project, says it was clear that the White House was pre-searching for reasons to permit religious discrimination. ‘The changes the Trump administration has made, and everything we've learned since the original ban rolled out, completely undermine the bogus national security justifications the president has tried to hide behind and only strengthen the case against his unconstitutional executive orders,’ he says. ‘The only way to actually fix the Muslim ban is not to have a Muslim ban. Instead, President Trump has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people,’ Jadwat says.

Berkowitz says the US is a country of laws and that the executive orders were a case where the people and the courts can indeed monitor the President's power using a plethora of existing anti-discrimination US laws.The Establishment Clause of First Amendment, for example, prohibits the federal government from officially preferring one religion over another while the Due Process Clause of the Fifth Amendment bars the federal government from depriving individuals of their liberty interests without due process of law, Berkowitz notes.

Furthermore, the Immigration and Nationality Act permits any alien who is physically present in the United States to apply for asylum regardless of their nationality. The United States has ratified the United Nations Convention Against Torture, that prevents the government from involuntarily returning any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture.

‘Imposing a religious test on immigration is contrary to US and international law,’ says Berkowitz. ‘And arbitrarily excluding individuals from certain countries where there is no evidence that doing so will reduce a terrorist threat is an arbitrary act that is contrary to law as well.’

‘If the President acts in a way that is an abuse of discretion and in violation of the Constitution and the laws of the United States, then the courts must step in and take action. This has been part of our tradition and it is ingrained in our Constitution. We are seeing a proper response to the president's actions, and I think that everyone can be confident that the rule of law is alive and well in the United States.’