Constitutionality Of Religious Discrimination

National Security Rationale

Immigration And Nationality Act Authorization

Federal Appeals Court Unanimously Rejects Bid To Reinstate Travel Ban

Federal Judges “Declined To Overturn” Stay Of Trump’s Travel Ban. NPR reported February 9 that the U.S. Court of Appeals for the 9th Circuit “unanimously rejected” President Donald Trump’s administration's request to reinstate the president's executive order. The three-judge panel sided with “the states challenging the president's travel ban” on “virtually every issue,” explained law professor Carl Tobias, saying it found that “the states had standing” in bringing their case, that the executive order was -- contrary to the Trump administration argument -- “reviewable by the court,” that the government was “not likely to succeed on the merits” of the case, and that it “had not shown” that a suspension of the travel ban was “necessary to avoid irreparable injury” to U.S. interests. From the report:

A federal appeals court has unanimously rejected a Trump administration request to allow its travel ban to take effect.

The three-judge appeals panel declined to overturn a lower court's order suspending the president's ban against entry into the United States by refugees and travelers from seven majority-Muslim nations.

[...]

But August Flentje, special counsel to the assistant attorney general, argued that the president has the ultimate authority to protect the national security and that his action in that regard — namely, the travel ban — was unreviewable by the courts.

In their ruling, the judges were unequivocal. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our democracy,” the court wrote.

[...]

The states challenging the president's travel ban won on virtually every issue, says Carl Tobias, a law professor at the University of Richmond School of Law.

“The order was unanimous. The panel found that the states had standing, that the executive order was reviewable by the court, that the U.S. was not likely to succeed on the merits and that it had not shown that a stay was necessary to avoid irreparable injury,” said Tobias. [NPR, 2/9/17]

Constitutionality Of Religious Discrimination

MYTH: Travel Ban Doesn't Target Muslims, Isn’t A Muslim Ban

Fox Contributor Mike Huckabee: “There Isn’t A Muslim Ban.” Fox contributor and former Arkansas Gov. Mike Huckabee claimed that “the people who are screaming the loudest” in opposition to Trump’s executive order and claiming it constitutes a Muslim ban are “lying about it,” adding, “There isn’t a Muslim ban.” From the January 30 edition of Fox News’ America’s Newsroom:

BILL HEMMER (HOST): Did the White House -- did the president do the right thing or not?

MIKE HUCKABEE: He absolutely did. He did exactly what he said he was going to do throughout the campaign, but more importantly, it's what he didn't do. He didn't ban people from seven countries. I don't know if John McCain read the executive order. He might ought to do that because those countries are not mentioned in the executive order.

[...]

HEMMER: Should the implementation have been better communicated between government agencies and perhaps governments overseas?

HUCKABEE: I think that's something that everyone can figure out, but in the meantime what I do think is that [Reince] Priebus is right. If you said, “Oh, by the way, in another seven days, we’re going to implement a policy,” well for seven days you’re going to have people flooding the borders and doing everything they can to get in, saying, “The window is closing.” So the only way to implement something like this and be serious about is is to do it quickly and abruptly. That's exactly what the president did. I think that, again, the people who are screaming the loudest, they’re lying about it, saying, “There’s a Muslim ban.” No there’s not. There isn’t a Muslim ban. Or that Trump named seven countries. They need to read the executive order. They obviously did not. And so, once again, it’s, I think, almost like a collaboration between a very either ignorant or deliberately lazy media that doesn’t look into the facts before they report them. [Fox News, America’s Newsroom, 1/30/17]

Fox’s Steve Doocy: It’s “False” That This Order Is A Muslim Ban. In an interview with conservative journalist Amy Holmes, Fox co-host Steve Doocy asked, “Is this a Muslim ban?” When Holmes replied that “It is not,” Doocy exclaimed in agreement, “That’s false.” From the January 30 edition of Fox News’ Fox & Friends:

STEVE DOOCY (HOST): On the cover of the New York Daily News today and a bunch of other newspapers it says this is a Muslim ban. Is this a Muslim ban?

AMY HOLMES: It is not. It is a moratorium --

DOOCY: That's false. [Fox News, Fox & Friends, 1/30/17]

FACT: Exception For Christians Makes Order Effectively Muslim Ban

Trump: “Yes,” Persecuted Christians Will Be Given Priority As Refugees Because It’s “Almost Impossible” For Syrian Christians To Come To The U.S. When CBN host David Brody asked Trump, “As it relates to persecuted Christians, do you see them as kind of a priority here?” Trump replied, “Yes,” adding that “if you were a Christian in Syria, it was impossible, at least very tough to get into the United States.” From a transcript of the January 27 interview:

DAVID BRODY: “Persecuted Christians, we’ve talked about this, the refugees overseas. The refugee program, or the refugee changes you’re looking to make. As it relates to persecuted Christians, do you see them as kind of a priority here?”

PRESIDENT TRUMP: “Yes.”

DAVID BRODY: “You do?”

PRESIDENT TRUMP: “They’ve been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.” [Christian Broadcasting Network, The Brody File, 1/27/17]

ACLU’s Anthony Romero: Trump’s Order “Violates The First Amendment" By “Saying That We’re Going To Exclude Individuals From Predominantly Muslim Countries,” And Then “Carv[ing] Out An Exception For Religious Minorities.” The ACLU’s executive director, Anthony Romero, told CNN’s Fareed Zakaria that “you have Mr. Trump saying that we're going to exclude individuals from predominantly Muslim countries, and then he carves out an exception for minority religions.” Romero called the order “a smoking gun that violates the First Amendment.” From the January 29 edition of CNN’s Fareed Zakaria GPS:

FAREED ZAKARIA (HOST): Parse that out for me. You're saying that it's unconstitutional and unlawful, why?

ANTHONY ROMERO: The executive order does a couple of things. It’s a moratorium on all refugees. It prohibits the entry of Syrian refugees. It bans the entry of individuals from seven countries. That includes even green card holders. That includes individual who have lawful visas. And then it carves out an exception for minority religions. Taken together, the four components of the executive order we think violate the due process protections of the Constitution, the equal protection clauses of the Constitution, violates some federal statutes -- the Immigration Nationality Act. We think it also violates some of our international treaties and conventions, and violates the First Amendment. The First Amendment is one of the core principles of our Constitution. It prohibits the government from either favoring or discriminating against any one particular religion. And here you have Mr. Trump saying that we're going to exclude individuals from predominantly Muslim countries, and then he carves out an exception for minority religions. The executive order is a smoking gun that violates the First Amendment. [CNN, Fareed Zakaria GPS, 1/29/17]

International Refugee Assistance Project’s Lara Finkbeiner: “This Is Clearly A Ban That’s Discriminating Against Muslim People.” International Refugee Assistance Project deputy legal director Lara Finkbeiner said on CNN that, despite the president’s “wide latitude” to suspend noncitizen entry, “we also have a Constitution that says you cannot discriminate against people based on religion.” Finkbeiner added that the executive order is “clearly a ban that's discriminating against Muslim people” because Trump “said during his campaign” he wanted a Muslim ban and “the seven countries listed are Muslim-majority countries.” From the January 30 edition of CNN’s At This Hour With Berman And Bolduan:

JOHN BERMAN (CO-HOST): There apparently are two things going on here. One, there's criticism from both sides of the aisle on how this was carried out over the weekend -- you were just talking about the chaos there, the fact that people were uninformed -- and then there's the law itself, Lara. And there is the 1952 law which gives the president broad power over foreign policy and immigration control. It says, “He can suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants if the president determines their entry would be detrimental to the interests of the United States.” That seems pretty clear. It does seem like he has wide latitude here.

LARA FINKBEINER: The president does have wide latitude. However, we also have a Constitution which says you cannot discriminate people based on religion. And even though the executive order doesn't specifically mention Muslims, we know from everything he said during his campaign and the fact that the seven countries listed are Muslim-majority countries, this is clearly a ban that's discriminating against Muslim people. [CNN, At This Hour With Berman And Bolduan, 1/30/17]

FACT: Targeting Any (Not Just All) Muslims Violates The Constitution

New York Attorney General Eric Schneiderman: The Intent To Discriminate Against Muslims “Permeates The Order” And Violates Both “Due Process … And Equal Protection Under The Law.” New York Attorney General Eric Schneiderman told MSNBC’s Joe Scarborough that it “couldn’t be more clear” that the order is “discrimination based on religion” and that the “core of the unconstitutionality [of the order] is that it violates people’s right to due process, but more offensively, it violates the establishment clause.” From the February 7 edition of MSNBC’s Morning Joe:

JOE SCARBOROUGH (CO-HOST): You say it’s unconstitutional. How is it unconstitutional?

ERIC SCHNEIDERMAN: The core of the unconstitutionality is that it violates people’s right to due process, but more offensively, it violates the establishment clause, which is the clause that says you can't favor one religion over another. And I think that, for all the rhetoric on both sides, the intent and the effect of this order is to discriminate against Muslims and to favor Christians over Muslims. And that is something that has been found constitutionally offensive by courts across the country.

SCARBOROUGH: Is that because of the seven countries they selected?

SCHNEIDERMAN: No, it permeates the order. Keep in mind that all we are looking at now is a stay of the immediate provisions.

[...]

SCARBOROUGH: I find it hard to believe the courts find this unconstitutional. I’m just wondering what the ground for that is.

SCHNEIDERMAN: Well the most essential ground -- there are a whole host of constitutional infirmities that have been alleged in different cases around the country -- a violation of right of due process under the law and equal protection under the law, under the Fifth Amendment. But, to me, the most offensive part of it is that it is absolutely clear that the intent is to discriminate against Muslims and the effect of it is to discriminate against Muslims. The language of the order itself, Trump putting out a statement right when he issued the order saying, “I have passed measures to prevent radical Islamists from getting into the country.” Couldn't be more clear than that. This guy’s order is about discrimination based on religion. That is at the heart of the United States’ commitment to equality. [MSNBC, Morning Joe, 2/7/17]

Harvard Law Professor Laurence Tribe: Trump’s Ban, Which “Target[s] Muslims With A Preference For Christians,” Is “Clearly A Violation Of The Establishment Clause.” Harvard University constitutional law professor Laurence Tribe explained that Trump’s executive order, which targets “not all Muslims, only muslims from seven countries … with a preference for Christians” and other religious minorities, is “clearly a Muslim ban” and “clearly a violation of the Establishment Clause.” From the February 3 edition of MSNBC’s The Rachel Maddow Show:

RACHEL MADDOW (HOST): What's your take on the legal status of this policy that the president tried to introduce last week?

LAURENCE TRIBE:  My take on it is that it's under a very dark constitutional cloud. If you just take a 30,000-foot view for a moment, this is clearly a Muslim ban. Not all Muslims, only Muslims from seven countries, but then targeted Muslims with a preference for Christians. Clearly a violation of the establishment clause. It’s done in the dark. It’s done without hearings. It's done in a way that is a violation of due process.

[...]

In the end, when constitutional rulings are finally rendered on the merits, this policy has no chance of standing. [MSNBC, The Rachel Maddow Show, 2/3/17]

National Security Rationale

MYTH: Ban Is Necessary For National Security

Trump: “See You In Court! The Security Of Our Nation Is At Stake.” After a federal appeals court upheld a lower court ruling suspending Trump’s travel ban, Trump tweeted that the “security of our nation is at stake” as a result of the suspension.

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

— Donald J. Trump (@realDonaldTrump) February 9, 2017

[Twitter, 2/10/17]

Gorka: The Muslim Ban Is “About The National Security Of All Americans” And Has “Nothing To Do With Which God You Pray To.” Gorka expressed confidence on CNN’s New Day that Trump’s executive order will stand because it “isn’t about a religion or Islam at all” and is instead “about the national security of all Americans.” From the February 6 edition of CNN’s New Day:

CHRIS CUOMO (HOST): Do you believe that you may get a decision in part but that the part of the ban that deals with either a selective potential religious test or how you compromise the rights of visa holders and maybe even citizens of the United States abroad, that that may be struck down?

SEBASTIAN GORKA: I’m not going to predict what’s going to happen in the future. I have full confidence that the executive order as written will stand and will be implemented as it's meant to be implemented. And it’s really important for your viewers to understand, there is no religious test. This isn't about a religion or Islam at all. This is about nations where jihadis are most active, specifically the Islamic state, ISIS, or Al Qaeda. It's about the national security of all Americans. It has nothing to do with which god you pray to. [CNN, New Day, 2/6/17]

Fox’s Greg Gutfeld: “We Are Entering An Era Where Security Is Now Being Viewed As Mean-Spirited.” Fox’s Greg Gutfeld described Trump’s travel ban as “pugnacious” and claimed that “we are entering an era where security is now being viewed as mean-spirited,” to which his co-host, Fox’s Eric Bolling, responded, “Yes, until something happens.” From the February 7 edition of Fox News’ The Five:

KIMBERLY GUILFOYLE: We are trying to make sure that people that want to do us harm don't get into this country, right? So you lock your door at night. Yes? Not because you don't like the people outside but because you love the people that are inside and you want to keep them safe.

GREG GUTFELD: Exactly.

GUILFOYLE: That is common sense. So it's not meant to be, you know, discriminatory on its face, it's not a quote “Muslim ban.” It is a travel suspension. But nevertheless the way that this came across and the way it was put forward, people were not able to wrap their heads around it because it wasn't presented in the right way.

GUTFELD: It was pugnacious. I use the phrase pugnacious. Eric, we are entering an era where security is now being viewed as mean-spirited. It used to just be common sense.

ERIC BOLLING: Yeah, until something happens, and then the are going to go, “Hey, what went wrong?”[Fox News, The Five, 2/7/17]

FACT: Diplomats, Security Officials, and Experts Agree The Muslim Ban Makes America Less Safe

Ten Former State and National Security Figures Have Spoken Out Against Trump’s Travel Ban. Former secretaries of state Madeleine Albright and John Kerry; former CIA directors Michael Hayden and Leon Panetta; former Deputy National Security Advisor Avril Haines; former deputy CIA directors John McLaughlin and Michael Morell; former assistant to the president for homeland security Lisa Monaco; former Homeland Security Secretary Janet Napolitano; and former National Security Advisor Susan Rice “signed a declaration in support” of the states of Washington and Minnesota’s cases against Trump’s executive order banning U.S. entry of foreign nationals from seven Middle Eastern countries. In the filing, they called the order “ill-conceived, poorly implemented and ill-explained” and argued that it “cannot be justified on national security or foreign policy grounds.” From the February 6 BuzzFeed report:

Former Secretaries of State Madeleine Albright and John Kerry and former CIA Director Michael Hayden — as well as Avril Haines, John McLaughlin, Lisa Monaco, Michael Morrell, Janet Napolitano, Leon Panetta, and Susan Rice — signed a declaration in support of Washington and Minnesota’s case against the president’s executive order, which Trump signed Jan. 27.

In the filing, they said they were “unaware of any specific threat that would justify the travel ban” — which bars people from seven predominantly Muslim countries from entering the US. “In our professional opinion,” they said, “this Order cannot be justified on national security or foreign policy grounds.”

They slammed the executive order as “ill-conceived, poorly implemented and ill-explained,” and said there was little evidence that it had undergone the “thorough interagency legal and policy processes designed to address current terrorist threats.” The declaration said the ban would in fact miss its intended target of potential terrorists. [BuzzFeed, 2/6/17]

Former National Intelligence Director  James Clapper: The Intel Community Is “Not Aware Of Any Extraordinary Threats” Necessitating Trump’s Travel Ban And “I Worry” It Will Be Used As “A Recruiting Tool” For Extremists. Former National Intelligence Director James Clapper told CNN’s Jim Sciutto that the intelligence community was not “aware of any extraordinary threats” necessitating Trump’s travel ban and added that he worries about how the ban affects our relationship with countries with “whom [we] are reliable partners” and about this “creating a recruiting tool for the extremists.” From the February 10 edition of CNN’s New Day:

JIM SCIUTTO: In his first interview since stepping down, the nation's top spy until just three weeks ago told us he is aware of no intelligence necessitating the president's travel ban and, in fact, finds the ban damaging. Does the terror threat necessitate the ban from these seven countries?

JAMES CLAPPER: Well, I don't believe we, the IC [Intelligence Community], were aware of any extraordinary threats that we're weren’t already dealing with and we're using I think some very rigorous vetting processes, which we constantly improve on.

SCIUTTO: Does a ban like this in your view, does it damage U.S. image but also counter terror partnership?

CLAPPER: Yes. I do worry about those countries in question with whom we do deal and who are reliable partners. I also worry about this creating a recruiting tool for the extremists. That they will point to this proof that there is, in fact, a war on all Muslims. [CNN, New Day, 2/10/17]

Counterterrorism Expert Mubin Shaikh: Trump’s Posture Toward Muslims Is “Feeding Into [ISIS’s] Narrative” And Making Counter-Messaging “Very Difficult For People Who Are On The Front Lines.” Counterterrorism expert and former extremist Mubin Shaikh explained that with Trump’s executive order, the “recruiting bonanza we have given ISIS” is “very real” and is “feeding into [ISIS’s] narrative” that the United States “hate[s] you because of Islam.” From the February 7 edition of CNN’s New Day:

ALISYN CAMEROTA (CO-HOST): You try to re-educate people who may be geared towards extremism or jihad. How does this travel ban affect your mission?

MUBIN SHAIKH: Yeah, well, I see it from two perspectives. One is the ex-extremist perspective and the other is, I was a trainer for a coalition in psychological operations, individuals who are in theater, on the ground in anti-ISIS messaging basically. I was to role-play ISIS. So, when everyone tells you that the recruiting bonanza that we have given ISIS is real, it's very real. It's making it very difficult for people like myself who are on the operational or practitioner's side to combat the ISIS narrative. Which is, look, they hate you because of Islam. This is the whole point. They hate you because of Islam. They're openly telling you that they hate Islam or Islam hates us, however you want to frame it, and it's just feeding into their narrative. It's making life very difficult for people who are on the front lines doing the countermessaging. [CNN, New Day, 2/7/17]

Islam Expert Haroon Moghul: “What Donald Trump Has Done Is Put Our Troops In Danger” And, Because Of Trump’s Muslim Ban, “Americans Are Less Safe.” Islam expert and political commentator Haroon Moghul explained that, by instituting the travel ban, “essentially what Donald Trump has done is put our troops in danger and made it harder for American to accomplish it’s objectives” around the world, and that the “long-term consequences is that Americans are less safe” because of his order. From the February 7 edition of CNN’s New Day:

CHRIS CUOMO (CO-HOST): Haroon, the counterargument is, ISIS already hates the West. You’re not going to give them any more incentive. All you’re going to do with something like this is one, recognize the threat which is from Muslim extremists towards the West, and give yourself a cushion during which time you can get vetting that will help you in places where there is no use for a database because there is no communication, there is no digitalized security.

HAROON MOGHUL: I don’t buy that, and part of the reality here is that we have obviously troops on the ground in places like Iraq, and we have partners that we work with in Muslim-majority countries to fight ISIS and to fight groups like ISIS. Imagine for a moment that you're an American soldier on the ground, you’re working with Iraqi partners, and you find out that this travel ban has been put in place. Basically what you're saying or what your government is saying is that, “Hey, we trust you enough to fight ISIS, but we're not really sure if you are ISIS, so we don't want you in our country.”

Essentially what Donald Trump has done is put our troops in danger and made it harder for America to accomplish its objectives. It’s a little bit of working backwards. You need allies in any kind of conflict, and when you’re alienating your allies just because it feels good to say “radical Islamic terror” or to institute a Muslim ban, you also have to think about the long-term consequences, and the long-term consequence is that Americans are less safe, and there will be more American boots on the ground and more American lives on the front lines rather than a coalition effort which has been, on the whole, pretty successful given the complexity of the situation. [CNN, New Day, 2/7/17]

Immigration And Nationality Act Authorization

MYTH: The Immigration And Nationality Act Gives Trump Clear Authority For Imposing Ban

President Donald Trump: The Authority Vested In Me By The INA Is “So Simple” That “It’s Clear To Anybody” That I “Can Do Whatever [I] Want.” In a speech at the Major Cities Chiefs Association Winter Conference, Trump described the statutory authority granted him by the Immigration And Nationality Act as “so simple” and “clear to everybody” and claimed that “you can suspend [entry], you can put restrictions [on immigrants], you can do whatever you want.” From the White House’s transcript of his February 8 remarks:

And you will see this -- it’s INA 212(f) 8 U.S.C. 1182(f): “Suspension of entry or imposition of restrictions by the President” -- okay, now, this isn’t just me, this is for Obama, for Ronald Reagan, for the President. And this was done, very importantly, for security -- something you people know more about than all of us. It was done for the security of our nation, the security of our citizens, so that people come in who aren’t going to do us harm.

[...]

He may by proclamation and for such period as he shall deem necessary -- so here it is, people coming in -- suspend the entry of all aliens. Right? That’s what it says. It’s not like -- again, a bad high school student would understand this. Anybody would understand this. Suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens. Okay, so you can suspend the aliens, right? You can suspend the aliens from coming in -- very strong -- or impose on the entry of aliens any restrictions he may deem to be appropriate.

Okay. So you can suspend, you can put restrictions, you can do whatever you want. And this is for the security of the country -- which, again, you’re the chiefs, you’re the sheriffs. You understand this. 

[...]

They should be -- when you read something so simple and so beautifully written, and so perfectly written -- other than the one statement, of course, having to do with he or she -- but when you read something so perfectly written and so clear to anybody, and then you have lawyers and you watched -- I watched last night in amazement, and I heard things that I couldn’t believe, things that really had nothing to do with what I just read. [The White House, 2/8/17]

Deputy Assistant Sebastian Gorka: Trump Has “The Exclusive Right To Determine” National Security Concerns Regarding Immigrants And Is “Completely Within His Mandate” With The Muslim Ban. On CNN’s New Day, Sebastian Gorka, deputy assistant to the president, called Trump’s executive order a “completely legal measure” and claimed that the immigration and nationality acts of both 1952 and 1965 support this interpretation, noting that the latter gave the president “exclusive right to determine” whether national security concerns exist. From the February 6 edition of CNN’s New Day:

CHRIS CUOMO (COST): What's your take on what happens in the courts?

SEBASTIAN GORKA: I think it's very clear if you look at the statements that came out of the federal court in Boston about how this is a completely legal measure. If you look at the original act from the 1950s and the more recent one that gave the president the exclusive right to determine if there are national security concerns with immigrants coming into this country, it's a slam dunk. He's completely within his mandate. There is a problem with these seven nations. And I expect the courts to decide in favor of the White House. [CNN, New Day, 2/6/17]

Radio Host Rush Limbaugh: Trump’s Statutory Authority Is “Crystal Clear” And There’s “No Wiggle Room” Or “Alternate Interpretation.” Conservative radio host Rush Limbaugh claimed that the statute that authorizes the president to bar entry to the United States by immigrant and nonimmigrant aliens is “crystal clear” and “there’s no wiggle room” in or “alternate interpretation” of his authority on immigration. From the February 8 edition of Premiere Radio Networks’ The Rush Limbaugh Program:

RUSH LIMBAUGH (HOST):There's no wiggle room there. There’s no alternate interpretation. There’s no reading between the lines to find out what they really meant here. It is as crystal clear as can be. [Premiere Radio Networks, The Rush Limbaugh Program, 2/8/17]

FACT: The President’s Authority On Immigration Is Not Unchecked

Legal Scholar Jeffrey Toobin: “There Are No Decisions That Are Completely Outside The Constitution,” And “The President Is Not Above The Law.” Harvard Law scholar and CNN legal analyst Jeffrey Toobin cited the 1803 ruling in Marbury v. Madison as evidence that “there are “no decisions that are completely outside the Constitution” and concluded that “the president is not above the law” on immigration or any other issue. “The courts get the final word on what’s legal and illegal.” In a CNN appearance earlier in the week, Toobin also pointed out that Trump was selectively quoting immigration law in his references to the INA, “because that's not the only relevant part of the law or part of the constitution. There's also part of the 1965 Immigration Act which said there cannot be any bias against any nation's immigrants in the course of the president's authority over immigration.” From the February 9 edition of CNN’s Erin Burnett OutFront:

JEFFREY TOOBIN: There is no value that is more central to what our constitutional democracy means, more than that the courts get the final word on what's legal and what's illegal. There are no decisions that are completely outside the Constitution. It was 1803, Marbury vs. Madison when chief justice John Marshall said it is the province and duty of the court to say what the law is, which means as of that moment, it was the court's right to overturn acts of Congress, to overturn acts by the president, and that excerpt that you played from the argument was so important because it was Judge Friedland asking, is the president above the law. And there was that horrible, awkward pause. And Judge Friedland and her colleagues wanted to make clear that the answer is no. The president is not above the law. And that's what this opinion says more clearly than anything. [CNN, Erin Burnett OutFront, 2/9/17; CNN, Wolf, 2/7/17]

International Refugee Assistance Project’s Lara Finkbeiner: While “The President Does Have Wide Latitude” On Immigration Policy, “You Cannot Discriminate … Based On Religion.” International Refugee Assistance Project deputy legal director Lara Finkbeiner said on CNN that despite the president’s “wide latitude” to suspend noncitizen entry, “we also have a Constitution that says you cannot discriminate against people based on religion.” Finkbeiner added that the executive order is “clearly a ban that's discriminating against Muslim people” because Trump “said during his campaign” that he wanted a Muslim ban and “the seven countries listed are Muslim-majority countries.” From the January 30 edition of CNN’s At This Hour With Berman And Bolduan:

JOHN BERMAN (CO-HOST): There apparently are two things going on here. One, there's criticism from both sides of the aisle on how this was carried out over the weekend -- you were just talking about the chaos there, the fact that people were uninformed -- and then there's the law itself, Lara. And there is the 1952 law which gives the president broad power over foreign policy and immigration control. It says, “He can suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants if the president determines their entry would be detrimental to the interests of the United States.” That seems pretty clear. It does seem like he has wide latitude here.

LARA FINKBEINER: The president does have wide latitude. However, we also have a Constitution which says you cannot discriminate people based on religion. And even though the executive order doesn't specifically mention Muslims, we know from everything he said during his campaign and the fact that the seven countries listed are Muslim-majority countries, this is clearly a ban that's discriminating against Muslim people. [CNN, At This Hour With Berman And Bolduan, 1/30/17]

ACLU’s Andre Segura: “The President’s Authority Over Immigration Is Not Unchecked.” On CNN’s New Day, American Civil Liberties Union staff attorney Andre Segura explained that the “president's authority over immigration is not unchecked,” calling any notion that it is a “myth” and concluding that “the president does not have the authority” to “prevent immigrants of certain faiths from entering this country.” From the February 6 edition of CNN’s New Day:

ALISYN CAMEROTA (CO-HOST): You heard the argument: This about national security and that, pardon the bun, trumps everything

ANDRE SEGURA: Well I think what we have to remember is when anyone says “second-guess,” what we should be doing is second-guessing the president when he attempts to institute a preference for certain religions or to disfavor certain religions. The president's authority over immigration is not unchecked. That is a myth. The judicial branch serves as a check, particularly when there is overreach. The president does not have authority to, for example, create a national religion. And the easiest way to do that is to prevent immigrants of certain faiths from entering this country. [CNN, New Day, 2/6/17]