In the aftermath of President Donald Trump’s rollout of a controversial executive order barring immigration from seven majority-Muslim countries, many questioned whether it was consistent with American values of acceptance and diversity.
A panel of UW-Madison professors gathered Tuesday night to address a different question: is the order constitutional?
Two UW-Madison legal experts had vastly different answers to this question. Asifa Quraishi-Landes, a UW-Madison Law School professor, presented arguments on why the order—which was recently halted due to a federal judge’s decision—is unconstitutional. Quraishi-Landes’ case rested on three central constitutional objections: the order is religiously discriminatory, and that it violates equal protection and due process rights.
“Religious persecution, if you’re a minority religion, is given priority in the refugee category,” Quraishi-Landes said. “That fact, combined with the fact that the seven countries chosen are Muslim-majority countries, seems to indicate that there is a bias against Muslims.”
Quraishi-Landes—the President of the National Association of Muslim Lawyers— also spoke to the impact Trump’s executive orders have had on the Muslim community.
“To focus on Muslims as some kind of ideology that’s different from our nationally founding principles I think is really frustrating,” Quraishi-Landes said. “For many Muslim activists on the ground, they are seeing resistance and hostility… to Muslim behavior even if there is no evidence of violent behavior.”
Political Science professor Howard Schweber took the opposite position: despite calling the order “both evil and stupid,” he contended it is likely constitutional. Schweber’s argument focused on the fact that it’s hard to say the order universally discriminates against Muslims, as well as the lack of rights non-citizens have.
“Non-citizens outside of the United States have no constitutional rights at all,” Schweber said. “That’s been established dozens of times.”
Schweber also mentioned that he thinks the order’s real danger is the discretion it gives Trump to make a broader list of countries to bar immigration from after the initial 90-day ban.
“We’re all focusing on the wrong thing,” Schweber said. “That list can have any number of countries on it, and there’s absolutely nothing to say that all of them, or most of them, might not be majority-Muslim.”
On the night of the panel, a federal appeals court held oral arguments on the order. Although they disagreed on the order’s constitutionality, both Quraishi-Landes and Schweber wrapped the event by agreeing on one thing: the case will likely reach the Supreme Court within a couple of weeks.
