This post describes the religious-discrimination aspects of three rulings last month by federal judges regarding President Trump’s revised executive-order on immigration (aka revised travel-ban).
Travel-ban opponents argued the revised ban intended to disfavor Muslims and thus violates the U.S. Constitution’s prohibition of any “law respecting an establishment of religion,” i.e., the First Amendment’s “Establishment Clause.”
They also argued it violates the Constitution’s guarantee of equal protection of the laws, i.e., the “Equal Protection Clause.”
On March 15, 2017, a federal judge in Hawaii ruled the revised travel-ban likely violates the Establishment Clause, reasoning that statements by Trump and his advisors showed that the ban’s purpose is to temporarily suspend entry of Muslims into the United States.
The next day, a federal judge in Maryland reached the same conclusion, finding the revised travel-ban clearly resembles the action once described as a “Muslim ban.”
Eight days later, a federal judge in Virginia concluded the revised ban likely does not violate the Establishment Clause, reasoning that Trump’s statements were about the original travel-ban and were not sufficiently related to the revised travel-ban to convince the judge that the predominate purpose of the revised ban is to discriminate against Muslims based on their religion.
The Virginia judge also rejected arguments that the revised travel-ban violates the Equal Protection Clause. The judge was heavily influenced by binding precedent establishing that courts must give Presidents a very high degree of deference in national-security and immigration matters.
In Hawaii—Considering the Statements of the President
Judge Derrick K. Watson, a federal district court judge in Hawaii, explained that for an action by the government not to violate the Establishment Clause, the action “(1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion.” If the action fails any of these prongs, he said, it is unconstitutional and may be prohibited by the courts.
The government argued the revised travel-ban is religiously neutral because it applies to everyone in six high-risk countries, including millions of non-Muslims. Judge Watson noted each country is 90.7% to 99.8% Muslim and it can be inferred that targeting them targets Islam. He did not rule based on this inference alone, though.
He considered evidence besides the text of the executive order establishing the revised travel-ban, such as evidence of the President’s statements. The judge rejected the government’s argument that courts cannot consider such evidence when evaluating executive orders.
Judge Watson’s ultimate decision was primarily based on what he described as “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Evidence cited included:
- In December 2015, the Trump campaign issued a press release which said, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”
- In March 2016, Mr. Trump said, during an interview, “I think Islam hates us.” When asked is “there a war between the West and radical Islam, or between the West and Islam itself?,” he replied, “It’s very hard to separate. Because you don’t know who’s who.”
- Trump was asked: “The Muslim ban. I think you’ve pulled back from it, but you tell me.” Mr. Trump responded: “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”
- Trump: “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.”
- Rudy Giuliani explained on TV: “When [Mr. 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.’”
Reviewing these statements, Judge Watson found “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 Watson said there was a lack of evidence suggesting a national-security purpose for the ban. He explained, though, that President Trump’s past conduct does not “forever taint any effort by it to address the security concerns of the nation. Based upon the current record available, however, the Court cannot find the actions taken” between the prior travel-ban and the revised one “to be ‘genuine changes in constitutionally significant conditions.’”
Judge Watson thus found the plaintiffs were likely to succeed in showing the revised travel-ban violated the Establishment Clause. He ordered the government not to enforce or implement the revised travel ban pending a full trial.
In Maryland—A Second Judge Finds the Revised Travel-Ban Unconstitutional
The next day, March 16, Judge Theodore D. Chuang, a federal district court judge in Maryland, reached the same conclusion. He explained that, while the revised travel-ban does not resemble a response to any recent national-security risk, “it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, 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. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.”
In Virginia—The Opposite Conclusion
Eight days later, Judge Anthony J. Trenga, a federal district court judge in Virginia, concluded differently, finding the revised travel-ban likely does not violate the Establishment Clause.
He reasoned that the changes made in the revised travel-ban made President Trump’s pre-revision statements about a Muslim ban less probative: “[T]he substantive revisions reflected in [the revised travel-ban] have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of [the revised travel-ban] is to discriminate against Muslims based on their religion and that [the revised travel-ban] is a pretext or a sham for that purpose.”
In other words, Judge Trenga saw the connection between Trump’s statements and the original travel ban, but found the connection between Trump’s statements and the revised travel ban much more tenuous—sufficiently dis-connected that he found that the plaintiffs are unlikely to prove the revised ban is intended to discriminate against Muslims because of their religion.
Judge Trenga said a different finding would have him “looking behind” President Trump’s judgments regarding national security, which would result in “’psychoanalysis of a drafter’s heart of hearts,’ all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.”
He also concluded the plaintiffs are unlikely to succeed on their argument that the revised travel-ban violates the Constitution’s guarantee of equal protection of the laws (the Equal Protection Clause) due to the revised travel-ban targeting Muslims for differentiated treatment.
Precedent from the U.S. Court of Appeals for the Fourth Circuit that is binding on Judge Trenga’s decision-making stated that when an “immigration measure is facially neutral and has a rational national security basis that is ‘facially legitimate and bona fide,’ such a measure will survive an Equal Protection Clause challenge. ‘Distinctions on the basis of nationality may be drawn in the immigration field'” and must be upheld so long as the distinctions “‘are not wholly irrational.’”
Given this highly deferential standard, Judge Trenga found the revised travel-ban does not violate the Equal Protection Clause.
Accordingly, he denied the plaintiffs’ motion to enjoin the revised travel-ban.
Conclusion: Supreme Court Late This Year or Early Next
Since Judge Watson’s order was a national order, and the decision of one federal district court judge does not overturn the decision of another, the revised travel-ban stands as enjoined under Judge Watson’s order.
In analyzing whether the revised travel-ban violates the Establishment Clause, all three judges largely agreed on the applicable standards.
Judge Trenga simply did not find the statements of the President and his advisers sufficiently related to the revised travel-ban to convince him that the revised ban was probably for the purpose of religious discrimination. The other two judges were sufficiently convinced by those statements to find it likely unconstitutional.
The Maryland and Virginia rulings will be appealed to the U.S. Court of Appeals for the Fourth Circuit in Richmond. The Hawaii ruling will be appealed to the U.S. Court of Appeals for the Ninth Circuit in San Francisco, the court that upheld a finding that the original ban is likely unconstitutional. The appeals courts’ decisions will be appealed to the U.S. Supreme Court.
The Supreme Court’s current term ends in June, so it will likely be at least late 2017 before a final decision.
(The picture is one I took in January of walls and barriers separating a Palestinian refugee camp from Israel.)
An earlier version of this post was published in The Tablet.