Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)

Targeting Muslims and Civil Liberties Prevention:
An Analysis of the Countering Violent Extremism Program?s First Amendment Violations
repeated displays of anti-Muslim animus by the Trump
administration and their implementation of the CVE
program.
more than a ?religious gerrymander.?? 53 Justice Sotomayor
concludes that there does not need to be an explicit
mention of religion for there to be Establishment Clause
violations in the Muslim ban, as ?the record? establishes
Justice Sotomayor?s dissenting opinion in Trump v. Hawaii
that ?the President campaigned on a promise to implement
(2018) provides an important precedent in establishing the
?a total and complete shutdown on Muslims?entering the
viability of considering the government?s intent when
country, translated that campaign promise into a concrete
attempting to review the constitutionality of a
policy, and made several statements linking that policy (in
governmental policy. Trump v. Hawaii deals with the
constitutionality of the Executive Order 13780, more
commonly known as the Muslim ban. In her dissenting
opinion, Justice Sotomayor cites that the Court
[h]as generally considered the text of the government
policy, its operation, and any available evidence
regarding ?the historical background of the decision
under challenge, the specific series of events leading to
the enactment or official policy in question, and the
its various forms) to anti-Muslim animus.? 54
Establishment Clause and CVE
In applying Justice Sotomayor?s framework in Trump v.
Hawaii to the constitutionality of CVE, one clearly sees
that CVE can be considered unconstitutional due to its
violation of the Establishment Clause. Like the Muslim
ban, Trump?s repeated anti-Muslim statements and
comments can be used to show a pattern of anti-Muslim
legislative or administrative history, including animus that has guided the implementation of CVE, as
contemporaneous statements made by? the indicated specifically by his comments advocating for
decisionmaker. 50
surveillance of mosques and a national registry of
American Muslims. Unlike the Muslim ban at issue in
Next, Justice Sotomayor quotes many of Trump?s
Trump v. Hawaii, CVE is very explicit in its targeting of
anti-Muslim statements and comments in order to
Muslim communities.
demonstrate a pattern of anti-Muslim animus that would
then inform the signing of the Muslim ban. 51 Justice
Sotomayor argues that under the endorsement test, a
Almost all of the pilot CVE programs? strategic
frameworks identified Muslim and/or predominantly
rational observer ?would conclude that the primary Muslim ethnic communities as primary sites of
purpose of the Proclamation is to disfavor Islam and its
adherents by excluding them from the country,? thereby
constituting a violation of the Establishment Clause. 52 In
subjecting the issue to the strict scrutiny standard
necessary in an Establishment Clause case, Justice
Sotomayor finds the national security interests mentioned
in the majority?s opinions to be insufficient and ?nothing
engagement for counterterror activity. In addition, all CVE
frameworks are heavily influenced by FBI and NYPD
counterterror frameworks and strategies, which essentialize
Muslims as inherently predisposed to extremism and
correlate adherence to Islam with extremism. This pattern
demonstrates a level of anti-Muslim animus and
unconstitutional disfavoring of Muslims that predates the
50. Ibid., 585 U.S. __, slip. op., 3-4 (Sotomayor, J., dissenting).
51. Ibid., 585 U.S. __, slip. op., 4-10 (Sotomayor, J., dissenting).
52. Ibid., 585 U.S. __, slip. op., 10 (Sotomayor, J., dissenting).
53. Ibid., 585 U.S. __, slip. op., 17 (Sotomayor, J., dissenting).
54. Ibid., 585 U.S. __, slip. op., 17-18 (Sotomayor, J., dissenting).
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