This past week, two district court's separately enjoined President Trump's revised travel ban, finding his new Executive Order issued on March 6, 2017, likely violates the Constitution's Establishment Clause by discriminating against Muslims. I explain here why the courts reached the right decision in these cases. Despite some tweaks, such as excluding legal permanent residents from the ban, Trump's travel ban 2.0 suffers from the same fatal flaw as its predecessor because it is driven by animus towards Muslims.
Trump, however, continues not only to engage in undignified and unprecedented attacks on judges who have questioned the order's legality, but also continues to defend the order by misrepresenting the threat posed by individuals from the six Muslim-majority countries who are temporarily banned from traveling to the United States. As a recent Department of Homeland Security Report found, "country of citizenship is unlikely to be a reliable indicator of terrorist activity," and "few of of the impacted countries [under the executive order] have terrorist groups that threaten the West." Facts, however, are irrelevant to Trump, especially here, where Trump's main motive is not to protect the United States (More than 100 top security and foreign policy experts from both parties agree the travel ban hurts, rather than helps, the country's security). Rather, Trump's goal is to brandish his faux populist credentials among his base by appealing to racism and xenophobia, while deflecting attention from his economic agenda which will weaken the position of many from among that very group.
Appeals by the government in both cases are expected. This important litigation is a test not only of the durability of constitutional principles prohibiting religious discrimination, but also of the judiciary's willingness to stand up to a president who has no understanding of or respect for the nation's Constitution.
