What makes Trump's travel ban so unconstitutional
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President Trump's rollout of his ill-conceived executive order on immigration is evidence that the Framers were correct about human nature: Expect all those with power to be tempted to abuse it and those with unchecked power to be tyrannical.

No recent executive order displays their wisdom better than this ban on immigration from seven Muslim countries, and all Syrian refugees, and the Department of Justice's hurried defense of the president's action.

It was drafted, signed and is now being defended as though the president has unlimited power that makes him unaccountable to the Constitution or the people.

Not so — and if he tries to enforce the ban over contrary orders of the federal courts, we will have a bona fide constitutional crisis.

Federal Judge James Robart entered a temporary restraining order against the executive order in favor of the states of Washington and Minnesota, who argued that it is unconstitutional, a violation of federal law, and inflicts irreparable harm on their economies, universities and people. He was well within his power to do so.

For the president, who foolishly tweeted that Robart was a "so-called judge," this will be an important lesson on the original intent of the Framers and how the system works.

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First, the order is unconstitutional because it is unsupported with fact and obviously was not researched or vetted. Therefore, it is simply arbitrary. Such brazen arbitrariness occurs rarely, but here you have an example of it. It is, in constitutional parlance, "irrational."

 

This kind of action is precisely what the Framers feared and the Constitution forbids.

The only justification for an unvetted, fact-bare and hastily issued order like this one would be a time of emergency. While the Constitution does not explicitly grant power to the president to exercise emergency power, the Supreme Court has interpreted the Constitution to imply such a power.

The most recent example would be the actions taken by then-President George W. Bush in response to 9/11: He was acting within his emergency power when he shut down United States airspace. But that is a far cry from today.

Without an emergency, Trump lacked the power to unilaterally halt the movement of those who had been following legal channels to enter the United States.

The order also violates the separation of power between the federal government and the states — federalism — because it imposes an extraordinary burden on the states' economies and governance without justification. It is commanding the states to dance to the president's tune and to take the hit for his policy.

Finally, it violates the First Amendment's Free Exercise Clause because it is based on animus toward Muslims.

In response to the Trump administration's attempts to say that the ban is not a "Muslim ban," a previous Supreme Court decision runs contrary to that argument. In Church of Lukumi Babalu Aye v. City of Hialeah, the court held that the First Amendment not only forbids obvious targeting of religious entities, it also "subtle departures" from neutrality.

The fact that the government attaches a neutral label or explanation to the order, as Trump has attempted to do so by arguing it targets seven countries as opposed to only Muslims, does not save it. This order, particularly in the context of the president's anti-Muslim rhetoric before and after the campaign and the religious makeup of these countries, is not a subtle departure from neutrality.

Tellingly, the chaos of the rollout was evidence of its weak foundation. Trump foisted on the public and the world a massive alteration in immigration policy before it could possibly have been adequately vetted by the Department of Justice, the Department of Homeland Security or Immigration and Customs Enforcement, among others, all of whom play a critical role in the processing of individuals into this country from abroad.

There is also the fact that Trump shoved it out of the White House before he even had his own attorney general in place. Trump's nominee for that position, Sen. Jeff SessionsJeff SessionsDOJ asks judge to reassess after sanctuary city update: report Sessions postpones Senate testimony on DOJ funding Voting advocates notch win at Supreme Court MORE (R-Ala.), obviously couldn't vet it before he took his post. The acting head of the Department of Justice at the time rightly refused to defend it, and was fired, but replacing a person in government does not displace the Constitution, even for the president.

The failure to build the record behind this extreme and thoughtless executive order predestined its failure.

The Framers' fear with respect to the presidency was that it had the power to act unilaterally, making it potentially the most dangerous branch in the short run. They even considered having a committee of presidents so that there would be no scenario where a King George III could reappear in American politics. But in the end, they agreed to let the presidency be filled by just one person because there would be emergencies that demanded unilateral action.

In the meantime, they created the checks on presidential power that Trump is bumping up against now.

The Framers handed no government actor absolute power. Rather, each branch received certain enumerated powers that were reinforced and/or checked by the other branches. The predominant image of government at the time was as a clock, with its cogs working both independently and dependently. When one cog springs out of alignment, the watch stops.

The checks in the system were not limited to three branches — the federal government was pitted against the states and vice versa, and church and state were separated so as not to permit either to completely dominate the other. All three play a role in the battle over the Jan. 27 executive order.

President Trump's action on immigration is a classic example of a cog springing loose.

Marci A. Hamilton is a Fox Family Pavilion Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania and the author of "God vs. the Gavel: The Perils of Extreme Religious Liberty" (Cambridge University Press, 2014).


The views of contributors are their own and not the views of The Hill.