Why Isn’t The Laptop Ban Unconstitutional Like The Travel Ban?

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The UK has just announced that it is adopting the same ban on laptops and other electronic devices, on flights arriving from the same airports, as the U.S. announced just this morning.

The airways affected include some domestic carriers including British Airways, EasyJet, Jet2.com, Monarch, Thomas Cook, and Thomson, and the following foreign carriers: Turkish Airlines, Pegasus Airways, Atlas-Global Airlines, Middle East Airlines, Egyptair, Royal Jordanian, Tunis Air, and Saudia.

“It would be the height of irony if the new UK restrictions, based upon the action taken by the Trump administration, are allowed to remain in place, while the Trump rules themselves are prevented from going into effect based upon the same legal arguments which led to Trump’s second travel ban being enjoined,” says public interest law professor John Banzhaf.

The new Laptop Ban could be unconstitutional says legal scholar

Because the administration’s new ban on laptops aboard certain flights is eerily similar to its second travel ban – only Muslim-majority countries are included, only undisclosed security threats are cited, and both follow many anti-Muslim statements by President Donald Trump and others – this new action should logically be subject to the same constitutional arguments, and trigger the same injunctive relief, suggests public interest law professor John Banzhaf.

Laptop Ban

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Although a ban on laptops is less serious than a total ban on immigration, it can nevertheless seriously impact business people, journalists, government officials, and others who must fly from the named airports, and cannot risk having their laptops in checked luggage – and the valuable documents and other information they contain – lost, stolen or damaged. Moreover, a governmental discrimination on the basis of religion is no less unconstitutional just because the harm may not be quite as great, notes Banzhaf.

Indeed, says Banzhaf, the legal argument that the laptop ban is unconstitutional may be stronger than a similar argument regarding the travel ban which has now been enjoined.

The new travel ban applies only to people in foreign countries without visas or other rights to be in the U.S. For more than one hundred years, the Supreme Court and other courts have held that, under the Plenary Power Doctrine, many constitutional protections – including those under the Establishment, Equal Protection, and the Due Process clauses – do not extend to foreigners outside our borders.

But it appears that the new laptop ban does apply to American citizens, U.S. permanent residents, etc. who are entitled to all these important protections, and therefore can make a strong argument that their constitutional rights are being violated. And while the laptop ban, like the travel ban, can and does apply to people of other religious faiths, it seems clear that both will primarily adversely affect Muslims.

So, if the travel ban is unconstitutional – as several courts have now held – because it allegedly discriminates against Muslims, because Trump and others have made statements about targeting Muslims, and because the administration has not articulated a clear statement of a strong security-based need for the travel restriction, the laptop ban arguably should be vulnerable to the same challenges.

Indeed, Banzhaf expects that administration lawyers arguing against the current injunctions on Trump’s second travel ban will point out that the logic and arguments used by the lower court judges to justify enjoining the second travel ban would apply equally to the laptop ban, as well as to any other security measures the administration might have to take in the future which adversely impacts Muslims.

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