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Granted: Federal Court Temporarily Suspends Second Travel Ban

Written by Sujata Ajmera on March 16, 2017

On March 6, 2017, President Trump issued a new Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into The United States” that replaced and narrowed the previous version issued on January 27, 2017.

Commonly referred to as the “Travel Ban,” the January 27th version, among other things, suspended the Syrian Refugee program indefinitely, temporarily suspended entry to the US for individuals from seven named countries (Iraq, Iran, Syria, Libya, Somalia, Sudan, and Yemen), and carved out exceptions for “religious minorities” of these predominantly Muslim countries.

Highly controversial in the way it was implemented, the January 27th Executive Order faced a number of high profile constitutional challenges. Ultimately, on February 3, 2017, the United States District Court for the Western District of Washington issued a nationwide injunction preventing the U.S. Government from enforcing substantive elements of the order¹. A day after issuance of the injunction, the Government filed an emergency appeal with the Ninth Circuit Court of Appeals.

March 6, 2017. While the appeal remained pending, the Government issued its second Travel Ban-related Executive Order which:

  • deleted Iraq from the list of countries whose nationals are temporarily banned from entry to the United States;
  • suspended the U.S. Refugee Admissions program temporarily, while making no reference to Syria specifically; and
  • eliminated the “religious minority” exception, as well as any reference to a specific religion throughout the order.

The second Travel Ban, slated to take effect on March 6, 2017, was expressly issued to replace the January 27th ban and purported to correct the constitutional deficiencies contained in that first ban.

March 8, 2017. The Government withdrew its appeal of the first Travel Ban Injunction, presumably in anticipation of the second ban’s successful implementation.

March 15, 2017. One day prior to the effective date of the Second Ban, the United States District Court for the District of Hawai’i granted a Temporary Restraining Order preventing implementation of the March 6th ban, finding that the Plaintiffs – the State of Hawai’i and Ismail Elshikh – established a likelihood of success on their claim that the second ban violates the Establishment Clause of the First Amendment of the U.S. Constitution.

In granting the Temporary Restraining Order, Judge Derrick Watson found that it was not the language of the second ban, per se, that made it likely to be found unconstitutional, but rather the underlying purpose of the ban that created the Establishment Clause issue².

The Establishment Clause of the First Amendment prohibits the Government from establishing or favoring one particular religion over others. In their request for relief:

  • The Plaintiffs cited the President and his advisors’ rhetoric and speeches during the campaign and after implementation of the first travel ban as evidence that the actual purpose of the Executive Order is to serve as a “Muslim Ban,” making it an executive order with a “tacit and illegitimate” anti-Muslim motivation.
  • The Plaintiffs cited several campaign speeches and interviews given by President Trump in which he set forth his intention to establish a Muslim Ban through “extreme vetting” with specific exceptions for persecuted Christians in Muslim-majority countries.
  • The Plaintiffs also rely on a critical television interview given by President Trump’s advisor, Rudolph Giuliani, when Mr. Giuliani confirmed that “When [President 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.’”
  • The Plaintiffs also relied on an interview given by President Trump’s advisor Stephen Miller, in which he confirmed that the second ban was meant to have the same effect as the first ban, but that it was narrowed to address the constitutional issues raised about the language of the first ban.
  • The Plaintiffs cited a February 24, 2017 draft report written by the Department of Homeland Security stating that citizenship was an “unlikely indicator” of terrorism threats against the United States and that the number of individuals from one of the named countries who have actually carried out or attempted to carry out threats against the United States was minimal.

The Plaintiffs contend that the sum of these statements (and others) add up to the conclusion that while the language of the second ban may pass prima facie constitutional muster, the ban was clearly issued in an effort to target Muslims, including those who are present in the United States, which is a violation of the Establishment Clause of the Constitution and the anti-discrimination provisions of the Immigration & Nationality Act.

Both the State of Hawai’i and the individual Plaintiff, Mr. Elshikh, a Muslim-American with family from one of the named countries impacted by the proposed visa ban, outlined the specific harm that has been and will be caused should the second ban be allowed to take effect.

The State of Hawai’i specifically cited the injury to its residents, employers, tourism industry, and educational institutions, while Mr. Elshikh cited the ban’s impact on family unity and on the message the ban sends to members of the Muslim faith that they are outsiders. The Plaintiffs both contend that the ban will inevitably stymie Muslim-American’s free association of faith in the United States as it targets Muslim citizens based on their religious views and national origin.

In his analysis, Judge Watson referred to precedent set by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971) to determine whether or not the second ban violated the Establishment Clause.  The Lemon Test, as it is commonly known, provides that when deciding if government action violates the Establishment Clause, courts must analyze and answer three guiding questions:

  • Is the government action primarily secular in purpose?
  • Does the government action have the principal effect of advancing or inhibiting religion?
  • Does the government action foster excessive entanglement with religion?

To pass the Lemon Test, all three prongs must be satisfied.  Upon review of the primary purpose of the Executive Order, Judge Watson found that while the second ban does not facially discriminate against any particular religion, the purpose of the government action was to impact individuals of a specific religion, namely Islam, and this purpose leads to a failure of the first prong of the Lemon Test – as the action is not secular in nature.

The Government argued that if the order was religiously motivated, it would have included individuals from all of the world’s Muslim-majority countries, not just six of them.  The court patently rejected this argument, calling it illogical to state that the only way to demonstrate discrimination or “animus” towards a group of people is through targeting all members of that group at once. The court stated that because all six named countries are overwhelmingly Muslim, “it would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam.”

The Government also argued that the Court should rely on the facial neutrality of the action and not look into the “veiled psyche” and “secret motives” of Government decision-makers when making a ‘purpose of government action’ determination. Judge Watson hit back particularly hard on this notion by stating that “The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry.”

Going on to state that there was nothing “veiled” or “secret” about President Trump’s intention to decrease or shutdown the number of Muslim’s entering the United States, as he and his advisors openly discussed it in many interviews and speeches, all of which were cited by the Plaintiffs. Ultimately, the Court stated that

“These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose.”

The Court emphasized that while the Temporary Restraining Order would be granted, the Government can always course correct by taking proactive steps to support its claim that the Executive Order is meant to protect and promote National Security, and that any impact it has on a religious group is unintended and unrelated to the action itself.

We anticipate that the Government will appeal this decision to the Ninth Circuit Court of Appeals and that litigation will continue on this issue. In the meantime, the Temporary Restraining Order prohibits implementation of the second ban and both the Department of Homeland Security and the Department of State have confirmed that they will abide by the terms of the injunction.

Thus, as of March 16, 2017, visas will continue to be issued to individuals from the six named countries and the U.S. Refugee Admissions Program will continue running while the injunction remains in effect.

¹See Washington v Trump, Case No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb 3, 2017).
²See State of Hawai’i and Ismail Elshikh v. Donald J. Trump, et al., Case No: 17-00050 DKW-KSC (Hawai’i DC March 15, 2017).