Fear Does Not (President) Trump the Constitution

By: Kris Vicencio

President Trump enacted a number of executive orders that have spawned protests across the country.[1]  Two in particular received heavy media coverage: (1) Executive Order No. 13768, Enhancing Public Safety in the Interior, and (2) Executive Order No. 13769, PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY.[2]  There are at least two major law suits challenging these orders on a number of grounds.[3]  But for a quick analysis, at least one section from each order could be found unconstitutional.

  1. Executive Order No. 13768, Section 9(a), “Sanctuary Jurisdictions’

This section addresses jurisdictions known as “Sanctuary Cities,” outlines required compliance with federal law, and imposes penalties on cities that do not comply.[4]  That penalty is the loss of all federal grants, except those “as deemed necessary for law enforcement purposes.”[5]  However, it creates undue pressure on these jurisdictions and is coercive; thus it is unconstitutional.[6]

In 1984, Congress enacted a statute to withhold a percentage of federal highway funds from states that did not raise the drinking age to twenty-one.[7]  The Court considered whether that penalty was permissible or unconstitutionally coercive.[8]  States would have lost 5% of the federal funding, and funds were still obtainable under other grant programs, so the Court found this penalty was permissible because it was only “relatively mild encouragement to enact higher minimum drinking ages. . . .”[9]

More recently, the Court addressed this issue by looking at a penalty imposed on states that would not comply with a specific portion of the Affordable Care Act (“ACA”).[10]  A provision was challenged that would withhold not new funding, and existing Medicaid funding, if a state did not comply with the new ACA Medicaid guidelines.[11]  The Court found this penalty to be impermissibly coercive holding, “when conditions for non-compliance take the form of threats to terminate other significant independent grants . . . it is much more than ‘relatively mild encouragement’ — it is a gun to the head.”[12]

Similar to the ACA’s Medicaid penalty, the penalty in Executive Order 13768 “puts a gun to the head” of these sanctuary cities.  This order does not tailoring the penalty to the issue at hand, it threatens to pull virtually all federal grant funding if a sanctuary city fails to comply.  This far exceeds the penalty seen in the ACA, and rises past the level of pressure to compulsion. Thus, it is unconstitutionally coercive.

  1. Executive Order No. 13769, Section 5(b) “Realignment of the U.S. Refugee Admissions Program”

This section prioritizes individuals applying for religious-persecution refugee status if he or she is from a “minority religion” in their country of origin.[13]  Neither the federal or state governments can pass a law that “aid one religion, aid all religions, or prefer one religion over another.”[14]  This section is unconstitutional because it violates the Establishment Clause by endorsing Christianity and condemning Islam.

To determine a violation of the Establishment clause, the Court created a three part test known as the Lemon Test: (1) whether the statute has a secular legislative purpose, (2) whether the primary effect advances or inhibits religion, and (3) whether it fosters an “excessive government entanglement with religion.”[15]  It is not a balancing test; if any of the three requirements are not met, the law in question would violate the Establishment clause.[16]

As an example, the Court has discussed whether a state official, a public school principal, violated the Establishment Clause by inviting a clergy member to invoke a prayer during graduation.[17]  The Court held that while attendance at graduation technically is not compulsory, there was “subtle and indirect” pressure to attend which “can be as real as any overt compulsion.”[18]  In effect, the school required students to participate in a religious exercise, violating the second prong of this test by advancing a particular religion.[19]

Turning this analysis to section 5(b), two prongs are violated.  First, section 5(b) has no secular legislative purpose.  It clearly states the Secretary of Homeland security will “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”[20]  Further, President Trump’s rhetoric suggests this order has a religious purpose.   Prior to his election, Trump made a number of anti-Muslim policy proposals, beginning with a press release calling for a “total and complete shutdown of Muslims entering the United States.”[21]  This theme continued as he gave an interview after signing this order, and affirmed that his intent was to prioritize refugee applications from Christians in the Middle East.[22]

Second, the Executive Order both advances Christianity and condemns Islam.  In support of this order, the Department of State issued a letter specifying seven Muslim majority, Christian minority countries to ban.[23]  In practice, prioritizing the “minority religion” in these countries, coupled with President Trump’s intent to target Christians, show that this executive order endorses Christianity.[24]

Section 5(b) violates the first two prongs of the Lemon Test.[25]  There is no secular purpose because the plain language of this section targets religion, and President Trump’s rhetoric about the Executive Order affirmed that he plans to prioritize Christians.[26]  The seven countries targeted in the immigration ban, coupled with President Trump’s remarks about prioritizing Christians, show a primary effect of prioritizing refugees from “minority countries” is to endorse Christianity.[27]  So long as one prong of this test is violated, a law would violate the Establishment Clause.[28]  Here two prongs are violated, showing this section of the Executive Order would endorse Christianity, violate the Establishment Clause, and is unconstitutional.


[1] Jeremy Diamond, & Steve Almasy, Trump’s immigration ban sends shockwaves, CNN (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-executive-order-immigration-reaction/.

[2] Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017); Exec. Order No. 13769, 82 Fed. Reg. 9877 (Jan. 27, 2017).

[3] See Complaint, City and County of San Francisco v. Trump, No 4:17-cv-00485-DMP (N.D. Cal. 2017); See also Complaint, Washington State v. Trump, No. 2:17-cv-00141-JLR (W.D. Wash. 2017).

[4] Exec. Order No. 13768, 82 Fed. Reg. 8799, § 9(a) (2017).

[5] Id.

[6] See South Dakota v. Dole, 483 U.S. 203, 211 (1987) (citing Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)) (The Court has recognized that sometimes “the financial inducement offered by Congress might be so coercive as to pass the point as which ‘pressure turns into compulsion.’”)

[7] Id. at 205.

[8] Id.

[9] Id.

[10] See Patient Protection and Affordable Care Act of 2010, 111 Pub. L. 148, 124 Stat. 119; Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2603 (2012).

[11] Sebelius, 132 S.Ct. at 2603.

[12] Id. At 2604.

[13] Exec. Order No. 13769, 82 Fed. Reg. 9877, § 5(b) (Jan. 27, 2017).

[14] Everson v Bd. of Educ., 330 U.S. 1, 15 (1947).

[15] Lemon v. Kurtzman, 403 U.S. 602, 612-3 (1971).

[16] See Widmar v. Vincent, 454 U.S. 263, 271-2 (1981) (stating the two prongs of the test were met, but the Court still considered a third prong to determine if the Establishment Clause was violated); See also Lee v. Weisman, 505 U.S. 577, 585 (1992) (Finding a practice violated the second prong of this test, and did not address the first or third prongs; both the First Circuit Court of Appeals, and Supreme Court affirmed the decision).

[17] Weisman, 505 U.S. at 586.

[18] Id. at 593.

[19] Id. at 594.

[20] Supra note 12. (italics added).

[21] Press Release, Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015, https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration.

[22] David Brody, The Full Interview: President Trump Talks with CBN’s David Brody, The Christian Broadcast Network (Jan. 30, 2017), http://www1.cbn.com/cbnnews/politics/2017/january/president-trump-sits-down-with-cbn-news-for-exclusive-interview.

[23] Jeremy Diamond, Trump’s latest executive order: Banning people form 7 countries and more, CNN (Jan. 29, 2017), http://www.cnn.com/2017/01/27/politics/donald-trump-refugees-executive-order/index.html (Banned individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, & Yemen); The World Factbook, Middle East :: Iran, Central Intelligence Agency (Jan. 12, 2017), https://www.cia.gov/library/publications/the-world-factbook/geos/ir.html (Religious population: (Islam 99.4%, Christian >0.3%); The World Factbook, Middle East :: Iraq, Central Intelligence Agency (Jan. 12, 2017), https://www.cia.gov/library/publications/the-world-factbook/geos/iz.html (Religious Population: Islam 99%, Christian 0.8%); The World Factbook, Africa :: Libya, Central Intelligence Agency (Jan. 12, 2017), https://www.cia.gov/library/publications/the-world-factbook/geos/ly.html (Religious Population: Islam 96.6%, Christian 2.7%); The World Factbook, Africa :: Somalia, Central Intelligence Agency (Jan 12, 2017), (Religious Population: Islam, no statistics on other religions); The World Factbook, Africa :: Sudan, Central Intelligence Agency (Jan. 12, 2017), https://www.cia.gov/library/publications/the-world-factbook/geos/su.html (Religious Population: Majority Islam, small Christian minority (no stats available)); The World Factbook, Middle East :: Syria, Central Intelligence Agency (Jan. 12, 2017), https://www.cia.gov/library/publications/the-world-factbook/geos/sy.html (Religious Population: Islam 87%, Christian 10%); The World Factbook, Middle East :: Yemen, Central Intelligence Agency (Jan. 12, 2017), https://www.cia.gov/library/publications/the-world-factbook/geos/ym.html (Religious Population: Muslim 99.1%, Christian >0.9%).

[24] See supra note 20; See also supra note 21.

[25] See Lemon v. Kurtzman, 403 U.S. 602, 612-3 (1971).

[26] See Exec. Order No. 13769, 82 Fed. Reg. 9877, § 5(b) (Jan. 27, 2017); See also supra note 21.

[27] See supra note 22; See also supra note 21.

[28] See Widmar v. Vincent, 454 U.S. 263, 271-2 (1981); See also Lee v. Weisman, 505 U.S. 577, 585 (1992).