Yesterday, 16 attorneys general condemned President Donald Trump’s executive order that placed a temporary ban on refugees entering the country as “unconstitutional, un-American and unlawful.” They agreed to “work together to ensure the federal government obeys the Constitution, respects our history as a nation of immigrants, and does not unlawfully target anyone because of their national origin or faith.”
If the executive order was without a doubt unconstitutional, as the attorneys general have confidently claimed, one could presume that at least one Republican attorney general would have signed the joint statement in a bipartisan fashion. But that is not the case: All attorneys general who signed the statement were Democrats, suggesting partisan politics rather than an unbiased legal interpretation. They represent the states of California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia.
To be clear, Trump’s executive order imposed three bans: a 120-day ban on all refugees entering the U.S., an indefinite ban on Syrian refugees, and a 90-day ban on anyone entering the U.S. from seven Muslim-majority countries (Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen).
Once the refugee ban is lifted, the executive order also allows for the prioritization of refugee applicants (all refugee applicants — not solely those from the seven Muslim-majority countries listed above) who identify with the minority religion in their residing country. As our own David French explains, “In some countries, this means Christians and Yazidis. In others, it can well mean Muslims.” New York attorney general Eric Schneiderman, one of the 16 attorneys general who signed the condemning statement, argued that this preference is “directly in violation of the Establishment Clause of the Constitution” because “you can’t favor one religion over another.”
But religious affiliation is already a criterion in deciding whether to approve or deny a refugee’s application; after all, the definition of “refugee” is, as French explains, “any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of . . . religion [among other things] . . . [.]” Which is to say that all refugees are, by definition, individuals fleeing persecution, often based on their religion. As Robert VerBruggen points out at American Conservative, one could argue that you shouldn’t distinguish between majority and minority religions so long as persecution is occurring, but the provision is hardly explicitly favoring or discriminating against a particular religion. (Andrew McCarthy also wrote a detailed analysis explaining why the executive order is constitutional.)
Trump’s executive order may have been poorly implemented, and for many it may be viewed as a bad policy. But to argue as the attorneys general have in such a partisan fashion and with some distortion of facts does not bolster the Democratic party’s claim to mount principled opposition.