It’s a Blowhorn, Not a Dog-Whistle: How President Trump’s Travel Ban Orders, Not His Statements, Are Enough to Establish a Violation under the Religion Clauses

Most bigots speak softly. They use dog-whistles, code words employed to prime bigoted sentiments within the listener. Not President Donald J. Trump; his voice on Islam is like a blow horn. His orders imposing travel bans on seven Muslimmajority countries were just as loud.

Although the Trump v. Hawaii Court claimed that the executive order it reviewed was religiously neutral, adherence to precedent reveals that all three executive orders violated the Religion Clauses of the First Amendment. There is much discussion, however, regarding the President’s remarks about Islam. Many jurists conclude that they should be used for interpretative purposes in First Amendment controversies. The reason given for doing so is that they reveal that the travel bans are no different than the exclusion orders in Korematsu v. United States.

This Article concludes that this debate on these bigoted statements are unnecessary to resolve constitutional questions under the First Amendment. All three orders violated the Religion Clauses on their own terms, structure, and circumstances.