President-elect Joe Biden promised the civil rights organization, Muslim Advocates, that if elected, he would end President Donald Trump's “unconstitutional Muslim ban” on day one of his administration.

If he ends the travel ban, it will be because Trump wrote it, not because it is an unconstitutional ban. The Supreme Court rejected those claims several years ago. In Trump v. Hawaii, the Supreme Court held that the travel ban was a lawful exercise of the broad discretion Congress gave the president in §1182(f) of the Immigration and Nationality Act and found no merit in the claim that it was a “Muslim ban.”

What’s more, there may very well be legitimate national security reasons for keeping the ban.

If Biden nevertheless decides to end it, it won’t be the first time the travel ban has been stopped because Trump wrote it. Here, history is instructive.

The travel ban

The original travel ban executive order was revised twice, first by another executive order and then by a presidential proclamation.

When a federal district court judge reviewed the second travel ban executive order, he issued a nationwide temporary restraining order on the ground that the parties objecting to it were likely to succeed in establishing that it violates the Establishment Clause of the First Amendment by discriminating against Muslims on the basis of their religion.

But he acknowledged in his decision that the travel ban does not discriminate against Muslims on the basis of their religion —

“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”

Nevertheless, he found — on the basis of Trump’s campaign statements — that the stated secular purpose of the travel ban order was, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.

When this decision was reviewed en banc, Judge Alex Kozinski observed in a dissenting opinion that —

“Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected. No Supreme Court case — indeed no case anywhere that I am aware of — sweeps so widely in probing politicians for unconstitutional motives.”

Trump v. Hawaii


Published originally on The Hill.