A second wave of litigation spawned from the Trump administration’s efforts to ban those from certain countries from traveling into the United States is hitting hard this week as federal courts consider legal challenges to the administration’s newest executive order, which which is set to take effect March 16.
So far, seven states have sued the Trump administration over its second Refugee and Visa Order, also known as the Muslim ban. They argue the latest ban is unconstitutional religious discrimination and an abuse of executive power. Washington, Minnesota, Maryland, New York, Massachusetts, and Oregon have all sued to block the ban; California Attorney General Xavier Becerra announced Monday his state would be joining the Washington lawsuit.
Trump released his first Muslim ban on January 27. On February 3, a federal district court issued a nationwide order blocking the ban from being enforced while litigation challenging its constitutionality proceeds. Just six days later, the U.S. Court of Appeals for the Ninth Circuit upheld the ruling, issuing a searing opinion that called the Trump administration’s actions blatantly unconstitutional.
In response to that opinion, the administration released an amended Muslim ban on March 6, prompting a fresh round of legal challenges.
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On Monday, Washington Attorney General Bob Ferguson asked the federal court to apply its February 3 order to block this latest Muslim ban. District Court Judge James Robart, who has been overseeing the initial legal challenges to the Muslim ban in Washington federal court, ordered the Department of Justice to respond to the state’s arguments by Tuesday afternoon. It is unclear whether an order on the new ban will come before March 16.
Trump’s first ban targeted nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. His new executive order keeps all of those countries except Iraq on the list of banned nationals, so long as those individuals do not have a valid U.S. visa as of the March 16 effective date, or did not have one as of 5:00 p.m. Eastern Standard Time on January 27, when the first ban went into effect.
In other words, the revised executive order means that no prospective visa holder from those six designated countries will be able to enter the United States. While it attempts to address some of the concerns the Ninth Circuit had regarding the scope of the original Muslim ban, the revision hardly makes this new one any more constitutional.
The very same First Amendment Establishment Clause problems with the first Muslim ban exist with the second. Under the Establishment Clause, the government cannot promote a policy that disfavors one religion over others. An order forbidding travelers from Muslim-majority countries on the basis of being de facto suspected terrorists does just that.
There are at least two U.S. Supreme Court cases directly on this point. The first is Church of Lukumi Babalu Aye v. Hialeah. The Church of Lukumi Babalu Aye practices the Afro-Caribbean-based religion of Santeria, which at times uses animal rituals as part of its worship. Shortly after such a church in Hialeah, Florida, announced it was opening, the city council adopted several ordinances addressing religious sacrifice. The ordinances prohibited possession of animals for sacrifice or slaughter, with specific exemptions for state-licensed activities. The church sued and argued the ordinance violated their First Amendment religious exercise rights. The Supreme Court unanimously agreed and ruled that even though the ordinances didn’t specify that they were targeting the Santeria church, they nonetheless did.
According to the Court, the fundamental problem with the ordinances were that they applied exclusively to the church. Practically speaking, there were no other religious groups whom the ordinance would apply to, so there is no way the city could support its claim that the ordinances were neutral in their application to religious practices.
In much the same way here, the Trump administration can claim it has the power, either through existing immigration law or executive authority, to suspend the rights of visa holders from the six affected countries. But it cannot escape the fact that, in effect, it is targeting those of a specific religion. Any power to do so remains checked by the First Amendment.
There’s another, more recent case the administration is going to have to confront as it defends its newest ban. In McCreary County v. ACLU of Kentucky, the American Civil Liberties Union (ACLU) sued three Kentucky counties for displaying framed copies of the Ten Commandments in courthouses and public schools. The ACLU argued the displays violated the First Amendment’s Establishment Clause, because they had the purpose of endorsing Christianity: Each display, the ACLU said, would lead an observer to conclude the government wanted to connect its spaces with a particular religion, in this case, Christianity. The Supreme Court agreed, and ordered the displays removed for just that reason.
The reasoning in McCreary applies to the Muslim ban as well: The Trump administration’s actions send a clear message that the federal government does not consider Muslims welcome here.
When the president of the United States tells the press during his campaign he intends to enact a “Muslim ban,” it is a pretty clear statement of intent to disfavor one religion over another. The Ninth Circuit has so far agreed, and used those statements as part of the evidence to support blocking the original travel order. With the release of the revised ban, a top adviser to the president, Stephen Miller, told the press it is just like the old ban with the same exact policy purpose—keep Muslims from Iran, Libya, Somalia, Sudan, Syria, and Yemen out of the country in any way possible. I hope and expect the federal courts will find Miller’s statements to be the same direct evidence of unconstitutional bias as they did Trump’s. The administration still sees this as a Muslim ban because it has always seen it as a Muslim ban.
Let’s not forget the Trump’s administration’s unexplained silence on the purported national security reasons spawning the bans. First, the administration argued the January ban was immediately necessary to address an imminent threat of a terrorist attack from people in those targeted countries. The administration then decided to wait to unveil the new executive order, so as to not take away from media adulation following Trump’s first congressional address—suggesting the “imminent” threat wasn’t so imminent.
All in all, the administration is trying here to use the cloak of national security to scoot around the First Amendment. The courts should not let it.
We will have answers to whether they will shortly, as the states have asked the courts to rule on the revised order before it takes effect Thursday. Any order will, like the previous order out of Washington, be temporary as the lawsuits challenging the administration proceed.
The immediate and practical effects of this latest order and the legal challenges remain to be seen, with one exception. So far the administration has succeeded in sowing chaos and fear with these orders, detaining lawful travelers and separating families. No matter how the courts rule in these challenges in the coming days, that damage is done and irreversible.
CORRECTION: This article has been updated to clarify that the second Muslim ban takes effect early Thursday morning rather than late Wednesday night.