Red, White, and Not You: Is Religion a Factor for the Mass Deportation and Exclusion of Immigrants from the United States under the Trump Administration?

By: Michaelyn Preston 

The Trump Administration has always been concerned about the threat that United States and foreign immigration processes pose to the nation’s security.  "Restricting the Entry of Foreign Nationals to Protect the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” is a recent addition to the slew of orders addressing the threat of immigration standards and which regions constitute threats to the United States. In his first term, President Trump issued Executive Order 13780, barring admission to the United States from nationals of a series of countries. This sparked a concern of whether the connecting factor between these suspensions was religion, at issue in Trump v. Hawaii. Once again, we see the Trump Administration ordering that the United States ensure aliens within, or seeking admission to, the nation not pose a threat to national security or national culture. The basis of these concerns has many facets, but in the wake of September 11^th, and more recently October 7^th, religion has become a focal point of threat assessment, and seems present in the subtext of this proclamation and past orders alike. This correlation, or perhaps causation, raises an important issue of the constitutionality of this assessment. The freedom of religion is guaranteed in the Constitution of the United States. For the Executive Branch to use it as a disqualifying factor represents an overstep of the President’s Article II powers and infringement upon due process and the right to freedom of religion under the Establishment Clause.    10949 "Restricting the Entry of Foreign Nationals to Protect the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” is a recent addition to the slew of orders addressing the threat of immigration standards and which regions constitute threats to the United States. In his first term, President Trump issued Executive Order 13780, barring admission to the United States from nationals of a series of countries. This sparked a concern of whether the connecting factor between these suspensions was religion, at issue in Trump v. Hawaii. Once again, we see the Trump Administration ordering that the United States ensure aliens within, or seeking admission to, the nation not pose a threat to national security or national culture. The basis of these concerns has many facets, but in the wake of September 11^th, and more recently October 7^th, religion has become a focal point of threat assessment, and seems present in the subtext of this proclamation and past orders alike. This correlation, or perhaps causation, raises an important issue of the constitutionality of this assessment. The freedom of religion is guaranteed in the Constitution of the United States. For the Executive Branch to use it as a disqualifying factor represents an overstep of the President’s Article II powers and infringement upon due process and the right to freedom of religion under the Establishment Clause.   

This new Proclamation, PP10949, harkens back to President Trump’s first term when he implemented EO 13780, which was at issue in Trump v. Hawaii. EO 13780, cited and elaborated upon by Presidential Proclamation 9645, hereinafter referred to as PP 9645, placed a travel ban on immigrants coming to the United States from certain countries. The nations targeted in PP 9645—or what is better remembered as the “Muslim Ban”—were those that the Department of Homeland Security (DHS), the Department Of Justice (DOJ), Immigration and Customs Enforcement (ICE), and related offices deemed to have substandard vetting and information sharing practices with the United States. EO 13780, and its revision in PP 9645, sparked the controversy in Trump v. Hawaii because the language suggested the ban was based on religion, an unconstitutional factor under the Establishment Clause. The Supreme Court determined that religion was not the basis of this ban, instead agreeing that the ban was against specific “threatening” regions. The dissent in Trump v. Hawaii argued that religion was a determining factor in the exclusion of Muslim’s from the United States by looking past the face of the legislation and citing previous statements from the Trump Administration. The Supreme Court Majority disagreed on grounds of specificity, saying that the approximately 200 nations listed in PP 9645 were not a comprehensive list of specifically Muslim populations, and therefore the ban was not discriminatory based on religion.  

As the Court affirmed in Trump v. Hawaii, the Executive Branch has the power to determine the admission of immigrants based on their geographic location when there is a concern about a threat to national security. While this sets a standard for admission, it raises a question of deportation. While the President does have the power, under the Alien Enemies Act (AEA), to deport foreign nationals, it is under the condition that they be from an enemy state. Considering no formal declaration of war against any state listed in the proclamation has been issued, it raises the question whether these peacetime deportations are legal? Where legislation burdens a suspect class under the Equal Protection Clause the Court uses the Sherbert Test to determine the validity and animus of the legislation. Because religion is a protected class, the Court calls for a review of strict scrutiny in the Government’s argument of the law’s narrow tailoring and their lack of choices in achieving the compelling Government interest at the heart of the law.

For the Court in Trump v. Hawaii, PP 9645 demonstrated a compelling Government interest in preserving national security, was narrowly tailored to specific groups, and the administration sufficiently proved that this legislation was the best option to achieve this security. PP 10949 is like its predecessors, calling for uniformity in vetting processes, increased information sharing, and the exclusion of nationals who pose a threat to the security of the nation. Born from EO 14161, a broader and more far reaching order, this proclamation narrows the scope to a specific list of nineteen countries, citing overstays, criminal statistics, and state sponsored terrorism as the basis of these suspensions. However, the proclamation specifically cites those aliens within, or seeking admission to, the nation as threats where they impact the nations’ civilians, culture, institutions, and founding principles. The specification of culture raises a concerning criterion of what constitutes a threat. 

Applying the same strategy as previous EO’s, and reading between the lines, there is a connection between this goal of preventing terror and protecting culture as PP 10949 proposes. What does the United States classify as risky criterion, what criteria could prove harmful, and what criteria could make assimilation difficult? The answer is overwhelmingly religion. While PP 10949 intentionally avoids any reference to religion, it does set the grounds for making it a relevant criterion for the DHS, ICE, and other related offices to consider when vetting immigrants within the United States. PP 10949 never mentions the word religion; however, EO 13780 never mentioned it either and it still came to be known as the “Muslim Travel Ban.” Of the groups listed in PP 9645, a common factor was Islamic extremism, contributing to the classification of the ban. Those states that are highlighted for concerns of terrorism are specifically cited as state sponsors within PP 10949. However, the preamble of this proclamation citing cultural threats, and the language of its predecessor citing difficulty in assimilation, creates the perfect storm for religious concern in this and future orders.

PP 10949 is no longer solely dealing with admission from areas that pose risks to national security like its predecessors, it instead is concerned with labeling cultural practices threats to national security. The combination of culture and assimilation as used in PP 10949 suggests that there is a cultural identity conducive to a safe America and conversely one that poses a threat to the ideals of life, liberty, and the pursuit of happiness. Herein lies the heart of PP 10949’s compelling government interest under the Sherbert Test. While terrorism is generally a strong concern for any nation, religious terror is particularly compelling as Gaza reigns over domestic and foreign media everywhere. PP 10949 serves this compelling interest in the exclusion and associated deportation of those it deems a threat to the American people and an American culture. The question becomes whether PP 10949 is narrowly tailored such that it is the best choice to achieve security from this defined threat and where the Constitution stands.

PP 10949 is a more specific take than its predecessors, and one that is not concerned with a singular criterion. It cites concerns ranging from visa overstays, to likelihood of crime, to whether the national comes from a state sponsor of terror. This range and specificity seems to satisfy the precedent set in Trump v. Hawaii, defining a narrow issue and providing a tailored action in response. Deportation however is trickier. Trump v. Hawaii does not provide precedent for questions of deportation, and without a declaration of war, where does that leave the AEA? The power struggle between Congress’ power to declare war and the President’s role as commander in chief are frequently at odds, however without any act to even imply wartime it seems the use of the AEA is inappropriate. ICE has a long history in deporting aliens and citizens alike. For PP 10949 to give these agents the basis to profile on cultural and religious connectors to terrorism, is to define a national identity and who that isn’t.

In the face of legislation that would limit one of the most fundamental rights of the American people, the Court will use the strictest scrutiny in judging the application of the law. This interpretation of PP 10949 and its predecessors implies the implementation of a religious ban, and in its enforcement, a violation of the very rights protected and guaranteed under the Establishment Clause. While the Trump administration has a compelling interest in promulgating this order, its execution would disproportionately affect Muslim people and others with ‘anti-American cultural values.’ Despite this, the narrow scope and tailoring of PP 10949 will likely allow it to survive any challenges where questions of admission are raised. The President’s peacetime deportation powers are another question, but with the undue burden placed on minorities, there is a strong case for a legal challenge. It is too soon to tell whether these peacetime deportations are an effective means of preventing terror in the United States, but regardless, the questions of the scope of due process and just what it means to be an American is now left up to litigation.