Trump’s Immigration Executive Order in the context of the Establishment Clause

By Thomas Lovecchio

Soon the Supreme Court will hear arguments regarding President Trump’s immigration Executive Order. These arguments will come from consolidating two cases, Trump v. Hawaii and Trump v. International Refugee Assistance Project, where the 4th and 9th circuit court of appeals each affirmed part of the district court’s preliminary injunction to stop the immigration ban, respectfully. Constitutional and immigration law are two of the areas that the Court will have to balance and address. The Supreme Court should hold that the Executive Order does not violate the Establishment clause because it does not persecute someone for not practicing a certain religion.

Our Constitution is rooted in founding principles that are always relevant and should always be evaluated when a constitutional issue arises. At the time the First Amendment was drafted our Founders wanted a government that would be unable to persecute its citizens if they did not practice a certain religion. This Executive Order does not infringe on an ability to practice/exercise religion because anyone in the United States can practice/exercise the religion of their choice. Also, the government is not persecuting or penalizing anyone for not practicing a certain religion. Rather, this Executive Order has a basis for national security. Whether that basis is legitimate should be evaluated outside of the Establishment Clause issue because the Establishment Clause issue should be rooted in discourse about whether or not the Court finds persecution or infringement for not practicing a certain religion.

The Court should not look at feelings/emotion/other factors when evaluating whether this Executive Order violates the Establishment Clause because when the First Amendment was drafted it was meant to protect citizens from the government’s ability to harm them for not practicing a certain religion.

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Trump v. International Refugee Assistance Project, 17-1351 (2017) http://www.scotusblog.com/case-files/cases/trump-v-international-refugee-assistance-project/ (last visited Oct. 9, 2017).

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