Image Trump signs order

Two courts strike Trump travel ban, citing past rhetoric and flawed natsec reasons

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President Trump and his team’s past anti-Muslim rhetoric, ill advised tweets, a series of flawed national security arguments, and Lyndon B. Johnson, would all contribute to the dooming of Trump’s travel ban Executive Order.

President Trump’s new executive order (No. 13,780, issued March 6) banning the entry of citizens from six Muslim majority countries for a period of 90 days, suspending the entry of refugees for 120 days, and cutting more than half the number of refugees to be admitted to the U.S. in the current year, was struck down last night, hours before it would have gone into effect, by a Hawaii U.S. District Court. This morning, again, it was struck down, in part, by a Maryland District Court. The order had been challenged as unconstitutional, violating the Establishment Clause of the 1st Amendment, 5th Amendment equal protection, the Immigration and Nationality Act (INA), the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act (APA).

The revised Executive Order titled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” had followed President Trump’s failed January 27, 2017 Executive Order (No. 13,769), of the same name. The Order’s stated purpose, “protect [U.S.] citizens from terrorist attacks, including those committed by foreign nationals,” identified two examples of terrorism-related crimes committed in the U.S. by persons entering the country either “legally on visas” or “as refugees”. The revised order reinstated the 90-day ban on travel for citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen, but removed Iraq from the list based on recent efforts to enhance travel documentation procedures and ongoing cooperation between Iraq and the U.S. in fighting ISIS.

The new order also applied only to individuals outside the U.S. who did not have a valid visa as of the issuance of the first order, and who had not obtained one prior to the effective date of the second order. The ban exempts lawful permanent residents, dual citizens traveling under a passport issued by a country not on the banned list, asylees, and refugees already admitted to the U.S.

The new order also continued to suspend the U.S. Refugee Admissions Program (USRAP) for 120 days and to reduce the number of refugees admitted in 2017 to 50,000. However, the minority religion preferences in refugee applications, and the complete ban on Syrian refugees were removed.

Shortly after the order was issued, various actions were filed seeking a nationwide temporary restraining order that would prohibit the federal government defendants from enforcing or implementing the order before it took effect.

I think Islam hates us … there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States … [a]nd of people that are not Muslim.

– Donald Trump, March 9, 2016, CNN interview

In a 43-page opinion, Judge Derrick K. Watson, U.S. District of Hawaii, granted the TRO, ruling yesterday that the second order violates the First Amendment’s Establishment Clause stating, “a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.” (State of Hawaii v. Donald J. Trump. et al.).

This was in agreement with plaintiffs’ argument that the executive order was a realization of the “Muslim Ban” promised in Trump’s campaign, and because that ban is directed at a specific religion, it violates the Constitution. The State had argued that the order would inflict constitutional and statutory injuries upon its residents, employers, and educational institutions, while individual plaintiff Dr. Ismail Elshikh alleged injuries on behalf of himself, his family, and members of his Mosque. The plaintiffs contended that the order resulted in their having to “live in a country and in a State where there is the perception that the Government has established a disfavored religion,” and that by singling out nationals from the six predominantly Muslim countries, the order causes harm by stigmatizing not only immigrants and refugees, but also Muslim citizens of the United States.

Critical to the court’s analysis were various statements (and tweets) made by President Trump, his spokespersons and Rudolph Giuliani, before and after his initial executive order, which plaintiffs argued indicated an anti-Muslim animus and illegitimate motivation to implement a “Muslim ban”.

Plaintiffs also stressed the February 24, 2017 draft report issued by the Department of Homeland Security which states that citizenship is an “unlikely indicator” of terrorism threats against the U.S., and that very few individuals from the seven countries included in the original order had carried out or attempted to carry out terrorism activities in the United States.

Any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.

– Judge Derrick K. Watson, U.S. District of Hawaii

In analyzing whether the plaintiffs had established a likelihood of success on the merits of their Establishment Clause claim, the court rejected a multitude of defenses put forth by the government determined to prove that the order was religious neutral. These included:

  • the order contained “religiously neutral text”
  • the order applies to six countries “that Congress and the prior Administration determined posed special risks of terrorism”
  • the order applies to “all individuals in those countries, regardless of their religion”
  • the six countries represent “only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population”
  • the order “covers every national of those countries, including millions of non-Muslim individuals”

Judge Watson rejected all, reasoning: “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise.” The opinion added, “Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed … that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam.”

Judge Watson also stressed “significant and unrebutted evidence of religious animus” behind the order, citing as an example, a March 2016 CNN interview where Trump said, “I think Islam hates us … there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States … [a]nd of people that are not Muslim.”

The court’s opinion also cited to various instances where, following the CNN interview, Trump stood by his position. On Meet the Press Trump was asked, “The Muslim ban. I think you’ve pulled back from it, but you tell me,” to which he replied, “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories.” This was soon followed by well known statements made by President Trump’s Senior Advisor, Stephen Miller, as well as Rudolph Giuliani’s now famous, “When [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”

According to the decision, “[a]ny reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.”

The court was, however, clear that this preliminary determination does not foreclose future executive action.

President Trump’s quick reaction to the decision, oddly enough, appeared to support the court’s rationale.

“Let me tell you something, I think we ought to go back to the first one and go all the way,” President Trump said Wednesday while at a rally in Nashville, Tennessee. “The danger is clear, the law is clear, the need for my executive order is clear.”

Donald Trump, Nashville TN rally, March 15, 2017

U.S. Court, District of Maryland 

The Hawaii district court’s decision was quickly followed by a similar decision from the District of Maryland. (Int’l. Refugee Assistance Project, et al. v. Donald J. Trump, et al.). The plaintiffs in the action, six individuals (Muslims) and three organizations (that “serve or represent Muslim clients or members”), include the Hebrew Immigrant Aid Society, the International Refugee Assistance Project, and the Middle East Studies Association.

In a 43 page opinion, Judge Theodore D. Chuang granted an injunction barring enforcement of Section 2(c) of the second order. However, the court declined to issue an injunction blocking the order in its entirety, only granting relief for that part of the order seeking a travel ban for citizens of the six designated countries.

In his decision Judge Chuang presented a similar analysis, first focusing on Trump’s public statements about the orders, including his tweets, and CNN, Fox News and Meet the Press appearances. Included was his January 27, 2017 interview on the Christian Broadcasting Network, where, referring to Syria, President Trump stated that “[i]f you were a Muslim you could come in, but if you were a Christian, it was almost impossible,” a situation that he thought was “very, very unfair.”

Judge Chuang noted that:

In a joint affidavit, 10 former national security, foreign policy, and intelligence officials who served in the White House, Department of State, Department of Homeland Security, and Central Intelligence Agency in Republican and Democratic Administrations, four of whom were aware of the available intelligence relating to potential terrorist threats to the United States as of January 19, 2017, have stated that “there is no national security purpose for a total bar on entry for aliens” from the Designated Countries and that they are unaware of any prior example of a president suspending admission for such a “broad class of people.”

Judge Chuang added, “officials note that no terrorist acts have been committed on U.S. soil by nationals of the banned countries since September 11, 2001, and that no intelligence as of January 19, 2017 suggested any such potential threat. Nor, the former officials assert, is there any rationale for the abrupt shift from individualized vetting to group bans.”

The fundamental, longtime American attitude has been to ask not where a person comes from but what are his personal qualities.

– President Lyndon B. Johnson

Limitations on presidential power inherent in the Immigration and Nationality Act

Central to the Maryland court’s decision is a limit to the president’s powers that, historically, came from a post WW2 sentiment. After U.S. immigration quotas had doomed millions of Jews attempting to flee Nazi Germany when Adolf Hitler seized power, arguably emboldening him to launch his “Final Solution” of mass murder, post WW2 presidents John F. Kennedy, followed by Lyndon B. Johnson, sought to repair America’s immigration law.

In drafting the executive orders, Trump’s legal team had relied heavily on Congress’ partial delegation of immigration policy powers to the President, set forth in the INA:

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

(citing 8 U.S.C. Sec. 1182(f)). President Trump recited this section verbatim at his March 15th Nashville rally.

The Maryland court, however, was clear to point out that when the INA was enacted, President Johnson had fully supported the explicit nondiscrimination provisions of the Act:

“No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence.”

(8 U.S.C. Sec. 1152(a)(1)(A)). The court cited Johnson’s concern that the then current immigration system and quotas were at odds with “our basic American tradition” and that we as a nation should “ask not where a person comes from but what are his personal qualities.” Rather than quotas, the 1965 legislation sought to accept immigrants based on family ties and skills.

As a result of the nondiscrimination limitation on the President’s power inherent in the INA, and the effects of the second executive order (the “specific effect of halting the issuance of visas to nationals of the Designated Countries”), the court rejected the government’s argument that the second executive order is exempt, and that the President is authorized to impose nationality based distinctions on the immigrant visa issuance process through another statutory provision. The court distinguished President Carter’s invocation of the INA to bar entry of Iranian nationals during the Iran Hostage Crisis in 1979, stating that President Carter used a limited exception for Iranians holding nonimmigrant visas.

Similar to the Hawaii court decision, the Maryland District Court also agreed that the second order violated the Establishment Clause, primarily because of the history of public statements by Trump and his team, including White House Press Secretary Sean Spicer’s statement, “that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban.”

National Security?

Refuting the government’s argument that national security concerns, detailed in the order, trump these deficiencies, the court stated, “the record provides strong indications that the national security purpose is not the primary purpose for the travel ban … The fact that the White House took the highly irregular step of first introducing the [initial] travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.”

The court also noted that the national security rationale offered, was only after courts issued injunctions against the first order. Judge Chuang added that the travel ban represents an historically unprecedented response, and that “it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban.”

President Trump has vowed to appeal the decisions. The question is whether a history of past anti-Muslim rhetoric, compounded by ill advised tweets intended to stoke base voters, can overcome the presumption of religious discriminatory motive.

If implemented, the order would have:

  • Banned entry for citizens of Iran, Libya, Syria, Somalia, Sudan and Yemen for 90-days.
  • White House officials said that Iraq was dropped from the list because it has new vetting methods, heightened visa screening and data sharing, and is working with the United States in fighting ISIS.
  • Under Section 3(c)’s waiver provision, foreign nationals of the six countries may nonetheless seek entry on a case-by-case basis.
  • The original order included a permanent ban on Syrian refugees. Syrians are not treated differently in the new order.
  • Refugees are still suspended from entry for 120 days, while new vetting procedures are put in place.
  • It cuts the number of refugees to be accepted this year from 110,000 to 50,000.
  • Like the 90-day suspension, the 120-day suspension includes a waiver provision that allows the Secretaries of State and DHS to admit refugee applicants on a case-by-case basis.
  • White House officials said that the new order would not affect legal permanent residents or green card holders, but it would effect people who have or are seeking visas to enter the country for work, visiting family members, tourism, studying, and residing.

Other pending legal challenges:

  • A lawsuit filed by Washington, has been joined by the states of New York, California, Maryland, Massachusetts and Oregon. Federal District Judge James Robart, the same judge that brought the injunction against the original ban, heard the case brought by the states at Wednesday night in Washington.

Legal rules being argued:

  • The cases allege that the ban violates the Equal ProtectionEstablishment, and Procedural Due Process clauses of the U.S. Constitution, among other laws.
  • The cases also cite the potential harm done to the states economies by the law;  New York City’s tourism marketing agency, NYC & Company, forecasts that 300,000 fewer visitors will come to the city, and it will cost businesses $600 million in sales.
  • The cases further allege that the motivation for the executive order is the promised “Muslim ban” from Trump’s campaign, which could trigger the Establishment clause. Washington Attorney General Bob Ferguson, the lawyer that brought the original case said, that there is “strong evidence that the intent behind these executive orders was actually less about national security, and more about a Muslim ban.”

LIMA CHARLIE NEWS, with Anthony A. LoPresti

Lima Charlie provides global news, insight & analysis by military veterans and service members Worldwide.

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