David Cole writes: If a Muslim Ban is cleaned up to exclude Iraq, exempt lawful permanent residents and other current visa holders, is it still a Muslim ban? That’s the question presented by President Donald Trump’s decision to replace his original executive order, enjoined by the courts, with a new one. The administration’s decision to abandon the old order is wise; every judge but one who had reviewed it found it raised grave constitutional concerns. The new order will be less catastrophic in its roll-out than the first, both because it exempts those who already have visas and because it will not go into effect until March 16. But it’s still religious discrimination in the pre-textual guise of national security. And it’s still unconstitutional.

As I’ve written before, Trump has repeatedly made crystal clear his intent to ban Muslims from entering the United States. As a candidate, he stated several times that he intended, if elected, to ban Muslim immigrants from entering the United States. He has never repudiated that commitment. When confronted with the fact that his proposal would violate the Constitution, Trump said on NBC’s Meet the Press in July, that he would use territory as a proxy for religion. And, when asked after his election victory whether he still intended to ban Muslim immigrants from the United States, President-elect Trump confirmed that was still his plan. Two days after the original Executive Order was issued, former NYC Mayor Rudy Giuliani, an advisor to President Trump, stated that then-candidate Trump had asked him for help in “legally” creating a “Muslim ban”; and that, in response, Mr. Giuliani and others decided to use territory as a proxy; and that this idea is reflected in the signed Order. There is overwhelming evidence that the most recent Executive Order was likewise intended to discriminate against Muslims. [Continue reading…]