strict scrutiny

Rounding out a week of horrifying policies, the new Trump Administration halted refugee resettlement and banned entry into the country for individuals coming from seven countries. Protests ensued. Lawsuits were filed. At least one injunction resulted from the insanity.

Among the more notable responses was the explanation given by Rudy Giuliani about how this program was developed. According to Giuliani, in an interview with Fox News, Trump announced it as a “Muslim Ban” and then asked Giuliani to figure out how to achieve that goal, legally. There’s a slight problem with that account: there is no legal way to ban an entire religion from America, because that’s unconstitutional.

It is rare to see such a clear articulation of the process by which discriminatory laws are crafted so as to, theoretically, pass constitutional muster. This isn’t a new game. It isn’t even an old game that has just been revived by this particularly odious administration. This tactic has such a long and storied past in American jurisprudence that we actually have terms to describe it.

This is a facially neutral attempt to unlawfully restrict a fundamental right recognized in the constitution, attributable to animus. That’s the fancy way of saying: they’re violating human rights because they hate Muslims.

Of course, the constitutional implications of an action like this are far-reaching. With cases like Korematsu on the books, justifying the imprisonment of Japanese-Americans during World War II, it’s hardly as if this is an open-and-shut case which will be resolved in favor of human rights. It’s more than a little terrifying that the cloak of national security might again be used as a legal fig leaf to cover the ugliness of racism and xenophobia.

With any luck, a still-as-yet-functioning judiciary will see to it that these and other policies designed to target Muslims fail.

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