Keep them Muslims OUT!

But Trump’s efforts to do so with today’s executive orders may be unconstitutional. If so, it may be due to a single sentence in the majority opinion Justice Alito wrote in the Hobby Lobby case. That was the one in which five justices said privately-held corporations didn’t have to comply with Federal rules they objected to on religious grounds if there was another way of achieving the rules’ goal, according to the Religious Freedom Restoration Act.

In Hobby Lobby, Alito’s majority opinion claimed that a 2000 amendment to RFRA was “an obvious effort to effect a complete separation from First Amendment case law.” This was, frankly, a highly dubious claim. But it is also part of the holding of an opinion by the Supreme Court of the United States. Whether it’s actually true or not is irrelevant. It’s the law now.

So Hobby Lobby severed RFRA from the body of cases interpreting the First Amendment. That would include any case law suggesting that immigrants seeking entry into the United States don’t enjoy protection from religious discrimination. RFRA limits Trump’s ability to discriminate against Muslim refugees, and he has Justice Alito to thank for it.

We’ll have to see whether this analysis stands up in court, but I assume the lawyers who sue on behalf of refugees will be informed of this argument. Let’s hope so.