On Monday morning, President Trump doubled down on his defense of an executive order barring the entry of refugees and travelers from seven majority-Muslim countries into the United States:
The implementation of Trump’s order has not, in fact, been going well. Confusion remains on the extent to which Customs and Border Patrol agents are violating court orders against Trump’s ban—agents who had to make up rules on how to handle immigrants flying into the country on their own absent guidance from the administration throughout the weekend. There have been reports, for instance, that green card holders legally allowed permanent residence in the United States—initially subject to Trump’s ban before a hasty reversal—have been asked by border agents to submit their social media accounts to inspection and even to surrender their green cards. On Sunday, Slate’s Dahlia Lithwick reported on the case of Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz, two Yemeni brothers with green cards who flew in to Washington’s Dulles airport on Saturday:
The Aziz brothers’ story is particularly stunning because, says [attorney Simon] Sandoval-Moshenberg, not only were they handcuffed while they were detained by CBP at Dulles, and not only were they turned away and sent to Ethiopia, but they were also made to sign a form, known as the I-407. In doing so, they surrendered their green cards, under the threat of being barred from the U.S. for the next five years if they did not. Sandoval-Moshenberg tells me he couldn’t quite believe the two young men “were straight-up bullied into having their green cards taken away.” They were at no point given copies of any of the documents they had signed.
On Sunday, CNN reported that Trump advisers Stephen Miller and Steve Bannon were directly responsible for the plight of the Aziz brothers and all the other green card holders detained, delayed, and confronted over the weekend:
Friday night, DHS arrived at the legal interpretation that the executive order restrictions applying to seven countries—Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen—did not apply to people with lawful permanent residence, generally referred to as green card holders.
The White House overruled that guidance overnight, according to officials familiar with the rollout. That order came from the President’s inner circle, led by Stephen Miller and Steve Bannon. Their decision held that, on a case by case basis, DHS could allow green card holders to enter the US.
It has been widely reported that federal officials, up to and including new Department of Homeland Security Secretary John Kelly, have been kept in the dark about the details of the order and its implementation from the outset. Sources told CNN, for instance, that the order was drafted without standard review and guidance from the Department of Homeland Security, the Justice Department, and the National Security Council. A growing number of Republicans are becoming critical of the order—on Sunday, Senate Foreign Relations Committee Chairman Bob Corker and Sen. Lamar Alexander seconded earlier criticism from Sens. Lindsey Graham and John McCain and the Koch brothers’ political organization issued a statement calling Trump’s ban “the wrong approach.”
On Sunday, Slate’s Mark Joseph Stern concurred with the federal judges who have, by their orders, questioned the constitutionality of Trump’s ban.
The Establishment Clause forbids the government from making any law “respecting an establishment of religion.” As the Supreme Court explained in 1982’s Larson v. Valente, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” This constitutional requirement, the court noted, is “inextricably connected with the continuing vitality of the Free Exercise Clause,” guaranteeing religious liberty for all by barring “favoritism among sects.” The court has also declared that the government may not “aid or oppose any religion. This prohibition is absolute.”
Trump’s executive order officially prefers Christians and Christianity and disfavors Muslims and Islam. The order is sloppy and at times indecipherable—it was apparently signed without any input or review by the executive agencies it affects—but whoever wrote it was smart enough to attempt to dress up its animus in pretext. That pretense, however, does nothing to obscure its discriminatory intent and effect.
Protests against the order are expected to continue. On Monday evening, congressional Democrats including Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi will lead a vigil outside the Supreme Court.
