The 14th Amendment Makes the Muslim Travel Ban Tough to Enforce

Andy Roberts
The Daily Record

There are some things that just cannot be done under the U.S. Constitution.

At least that is the belief of many individuals, but that doesn’t stop others from trying.

But getting in the way of such actions is the 14th Amendment.

Ah, the 14th Amendment. It is one of the Reconstruction Amendments that was brought about by issues related to former slaves after the Civil War. It limits state and local officials in their actions, and it has been involved in some of the nation’s most high profile and dynamic cases.

Those include Brown v. Board of Education (racial segregation), Roe v. Wade (abortion), Bush v. Gore (2000 presidential election) and Obergefell v. Hodges (same sex marriage).

There also is its Equal Protection Clause that protects people belonging to various groups and provides them equal protection under the law.

As one of his first actions under the mantle of executive order, President Donald Trump signed a travel ban, citing national security concerns.

The president’s first attempt to ban travel from seven Muslim countries quickly ran into a stay, and a second effort targeting people from six of those countries also was halted.

At press time, nothing was resolved and it remains under a stay. The topic has been hotly debated ever since.

G. Michael “Mike” Fenner, a professor at the Creighton University School of Law who teaches constitutional law, says something will have to change if travel from those Middle Eastern nations is to be restricted.

“It can’t be done as a Muslim travel ban because that would violate the religion clauses of the 1st Amendment,” Fenner said.

Yes, there’s that legal matter as well.

Fenner pointed out that Federal District Court Judge Leonie Brikema in Virginia said it is clearly a religious ban, and in doing so cited a number of statements by Trump himself.

While the administration attempted to brush that off by saying it was only a campaign promise, “He’s continued to call it a Muslim ban,” Fenner stressed.

Fenner said the administration’s efforts weren’t helped when former New York Mayor Rudy Giuliani went on Fox News and said the plan came together quickly, but then there were efforts to make it look like something else.

A judge then pointed out it still was referred to as a Muslim ban online on Trump’s website.

“The way I characterize that is: ‘You can put lipstick on a pig but it’s still a pig,’” Fenner said, adding, “The second one wasn’t really any different.”

The Justice Department has argued that President Trump has constitutional and legal authority in matters of national security that date back to at least the early 1950s. Lawyers for the department also have made the claim that most of those affected by the ban have never previously entered the United States, and say, “request a privilege and have no constitutional rights” under a 1982 United States Supreme Court ruling.

The administration’s attorneys have argued that “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future” should get a break from Trump’s order, if anyone does.

The Immigration and Nationality Act of 1952 is one key to the government’s argument. That provided the president with power to suspend or impose restrictions on the entry of foreign nationals if, in his determination, their entry “would be detrimental to the interests of the United States.”

In its district court brief, the Justice Department lists eight instances that date back to President Ronald Reagan in 1986 in which presidents blocked residents of certain nations from coming to the United States.

Given the religious element so often mentioned by the Trump administration, Fenner does not think this will work.

“If you could determine that every member of the religion posed a danger, then you could find a compelling reason for keeping them out,” he said. “Then you could satisfy the compelling state interest test.

“You have to draw the line, somehow, that it’s not based on religion,”

Naming seven, and then six, Middle Eastern countries did not meet that test.

“It seems he can’t refine this more than to say ‘keep Muslims out temporarily,’” Fenner stated.

Fenner was asked, for example, if in the past, membership in the Irish Republican Army (IRA) had posed a threat, could they have been banned.

Membership in the IRA would be different than membership in the Catholic Church, Fenner explained. That would help the administration’s argument.

Trump could ban some terrorist subgroups, he said, “But what do you do if they come to the border? Do you ask them?”

Real terrorists are unlikely to cooperate or keep that information on their Facebook page, he suggested.

“So you’d only catch the really stupid ones.”

The United States continues to hold a strong appeal to people around the world who want to come here to improve their lives. Immigration attorneys are on the front lines of those trying to help individuals navigate a now even more challenging process.

For the moment the travel restrictions have been stalled meaning, for now, there are none. Guy K. Weinstein is advising his clients to come back to the United States as soon as possible. Weinstein is a local immigration attorney with Kasaby & Nicholls, LLC in Omaha.

“You have many more rights than you would at the door,” he said. “As an arriving non-citizen of the United States, you have much less resources to fight your case.”

The ban caused serious difficulties for one such individual who is working with Weinstein. An Iraqi client, who had been in Malaysia, was overseas when the travel ban was announced. The man was unable to come to the U.S. when he planned, lost his visitor status and had to register, in Malaysia, as a refugee.

The court stay provided him an opportunity to return to the U.S.

“He is back in the United States. His fiancé lives in Lincoln,” Weinstein said, and he is interviewing based on a fiancé (K 1) visa.

“We have to treat every case differently,” Weinstein said. “Right now the general advice that we have for our clients is to not be abroad at this time. … It’s much easier to deal with your immigration issues here than when you are abroad.”

The current climate adds a bit of adventure to his job and others working in the area of immigration law.

“Every case you learn something new,” Weinstein said. It is vital, he emphasized, to stay up to date to be a competent practitioner.

“You can’t just jump in,” he said. “There are so many moving pieces.”

Omaid M. Zabih, a staff attorney for the Nebraska Appleseed Center, said while the organization doesn’t take on clients, it has worked to help organize rallies to support refugees. He has been encouraged by the three court decisions that, so far, have ruled against the executive order.

“They’ve all placed injunctions on them,” he said. “The executive order is a destructive policy that runs contrary to Nebraska values.”

Nebraska Appleseed has focused on promoting a message that the state welcomes individuals who are trying to escape violence and contribute to their communities.

“It [the ban] doesn’t really improve our security,” he said. “We’ve been really encouraged to see Nebraskans across the state line up in support of refugees.”

Zabih said Nebraska Appleseed will keep working with other organizations across the state to support refugee communities. He also suggested Nebraskans let their representatives in Congress know.

“I think we’ll continue to do what we’ve been doing,” he stated.

As the nation – and many potential new Americans – wait for these cases to work their way through the courts, Fenner said there are precedents for some exclusionary laws.

There were some old cases called the Chinese exclusion cases in the 1880s that now are pretty much discredited, Fenner said. There was Korematsu v. United States during World War II that involved the internment of Japanese Americans in camps. That also has been widely discredited.

“Surely that would not be so simple today,” Fenner said, but “it has been done before and upheld.”

That doesn’t mean there won’t be attempts to do something similar.

“We do a lot of things when we’re afraid that we wouldn’t do otherwise,” Fenner said. “And we get away with it internally … and sometimes the court is an enabler.”

For those wondering about an excessive use of executive power, Fenner said, so far to the courts, the travel bans have been an abuse of that power.

But any president, he pointed out, has more power in foreign affairs than in domestic affairs. That, he emphasized, doesn’t give him license to violate other parts of the Constitution.

It is possible this issue could work its way up to the U.S. Supreme Court.

“My guess would be that the United States Supreme Court will do what it can to try to stay out of it and let it work itself out,” Fenner stated. “So far the ban is on hold.

But: “Eventually, they might have to get involved.”


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