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New: Law Prof asks: Does Trump’s immigration order trip over the Equal Protection Principle?

Carol Polsgrove
Sunday January 29, 2017 - 06:02:00 PM

Among the law professors weighing in on Donald Trump’s executive order barring entry of immigrants from designated nations, City University of New York’s Ruthann Robson considers its relationship to the equal protection principle--one of several on which the ACLU has based its lawsuit to block the order. 

She writes in the Constitution Law Prof Blog that the Supreme Court has held that “distinctions between citizens solely because of their ancestry are, by their very nature, odious to a free people whose institutions are founded upon the doctrine of equality.” 

Because the immigrants caught up in Trump’s net are not citizens, are they to be denied equal protection? 

Not necessarily, Robson argues, citing the 2008 decision Boumediene v. Bush upholding the habeas corpus rights of noncitizens detained in Guantanamo Bay. 

“The noncitizens subject to the President's Executive Order (EO) often have substantial links to the United States,” she notes. 

Moreover, Robson points out Trump’s choice of who to exclude lacks the “compelling public interest” that might override considerations of equal protection. 

“If one accepts the ‘September 11’ rationale, the link to an event more than 15 years ago is tenuous. Additionally, even if there was such a link, there is no overlap in the nationality of those involved in the September 11 attacks and those targeted in the EO. 

“Not only is there a mismatch between the nationalities of September 11 attackers and the nationalities of those targeted in the EO, there is the odd coincidence that President Trump has no business connections in the nations targeted while having such business interests in the nations excluded. This might lead to an argument that stated national security interest is not the President's genuine interest... There could be an argument that the President's "real" interest in the EO is one of personal profit, an interest that coincides with the recently filed Emoluments Clause challenge.” 

Or, she says, the argument could be made “that the President's ‘real’ interest relates to Russia, an interest that would coincide with ongoing investigations into the Trump-Putin connections. Finally, there is an argument that the targeting of Muslims is based on animus and the bare desire to harm a politically unpopular group, an interest that the Court has repeatedly found to not even satisfy the lowest level of scrutiny requiring a mere legitimate interest, in cases such as Moreno v. USDA (1973).” 

For a list of subject areas covered by the Law Professors Blogs Network, see http://www.lawprofessorblogs.com/

(Stay tuned to the BDP for updates on legal commentary on the Trump administration.)