Local experts discuss the legal hurdles and issues facing President-elect Donald Trump in his first 100 days in office. This week, we continue with President Trump, the First Amendment and the travel ban.

President Trump and Freedom of Religion

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The courts have interpreted this clause as preventing the government from favoring one religion over another. Under this provision, the government must not, for example, provide funding to a church if that same funding isn’t available to a mosque or synagogue, or allow a church to display a cross on public land without allowing a synagogue to display the Star of David. The Supreme Court has explained that the endorsement of one religion sends a message to those of another religion “that they are outsiders, not full members of the political community.”

Travel Ban

President Trump’s Executive Order temporarily suspending admission of any person from any of seven Muslim majority countries and of all Syrian refugees indefinitely is being challenged, in part as a violation of the First Amendment. While the order itself does not specifically target Muslims, opponents argue that the purpose and effect of the order is to disfavor Muslims.

To support this claim, the lawsuits cite numerous statements by Trump and his surrogates. During the campaign, Trump called for the “complete and total shutdown” of Muslims entering the country. After he signed the order, he stated in an interview with the Christian Broadcasting Network that he was inclined to give preference to Christians seeking entry from the identified countries. In addition, Rudy Giuliani, an adviser to Trump, provided additional evidence when he reported that Trump had asked how to implement a “Muslim ban” legally.

Although there are multiple lawsuits challenging the order, no court has yet determined that it’s unconstitutional. Instead the courts have stopped enforcement of the ban until a determination can be made. The courts have all asked the government to produce evidence that the ban is necessary. In the end, courts must balance Trump’s broad discretion to suspend the entry of a class of individuals deemed to be a threat to national security against the rights and protections enshrined in our Constitution. It is a delicate calibration and one the courts have gotten wrong before.

In 1942, two months after the start of World War II, President Franklin Roosevelt signed an order requiring that every Japanese-American on the West Coast be imprisoned. Fred Korematsu refused to report to military officials. He was arrested and imprisoned. Like today, the American Civil Liberties Union brought a suit challenging the order. In a 6-3 decision, the Supreme Court of the United States held that the order was constitutional. The court ruled that the government’s need to protect against espionage outweighed Korematsu’s individual liberty interest.

Forty years later it was discovered that lawyers representing the government had suppressed evidence by failing to disclose an Office of Naval Intelligence report stating that there was no evidence that Japanese-Americans were acting as spies. Based on this new evidence, a court overturned Mr. Korematsu’s conviction. In 1983, a congressional panel concluded that “racial prejudice, war hysteria and the failure of political leadership” prompted the detentions. In 2011, the Department of Justice filed an official notice that its defense of the order had been in error.

The courts play an important and decisive role in our constitutional system. Our system is designed to provide the government the power and flexibility to meet the needs of the republic — such as national security — yet limit that power sufficiently to protect the guaranteed rights of citizens. To assure these ends, the Framers created three independent and coequal branches of government, each with designated powers and each with the power to check the other two branches. In this system, the Supreme Court of the United States has the authority to invalidate legislation or executive action that it finds conflicts with the Constitution.

Whether Trump’s order overstepped the boundaries of the Constitution is yet to be determined. What has been made clear, however, is that the order is subject to judicial review, that Trump will need to provide evidence of its necessity, and that the courts will act as a check against government overreach, even when it is an order taken to promote national security.

Santa Barbara and Ventura Colleges of Law (COL) Dean Jackie Gardina’s experience in higher education includes both academic and administrative positions. Established in 1969, COL, an accredited nonprofit institution was founded to expand opportunities and broaden access to legal education. For more information, visit www.collegesoflaw.edu.