October 20, 2017

The Latest Muslim Ban Litigation

Muslim Ban, Ryan J. Suto

by Ryan J. Suto, J.D., Government Relations Manager, Arab American Institute

Two federal court rulings this week constitute a third strike for the Trump administration’s attempt at enforcing a Muslim ban. The Administration issued an indefinite Muslim ban late last month, Proclamation 9645, prompting the Supreme Court to rule moot litigation regarding the previous, temporary version of the ban. However, hours before the new ban was set to take effect on October 18, US District Courts in Hawai‘i and Maryland halted a majority of the policy from taking effect, largely arguing that the new indefinite ban does not avoid the statutory and Constitutional infirmaries of its temporary predecessors.

Rulings on the Latest Muslim Ban

On Tuesday Judge Watson in Hawai‘i ruled against the government in Hawai‘i v. Trump, granting a temporary restraining order against the policy with respect to the ban’s listed Muslim-majority countries. Early Monday morning Judge Chuang in Maryland entered a preliminary injunction for same countries in favor of plaintiffs in IRAP et. al v. Trump.

Both judges found that the Proclamation over-stepped the President’s authority in the realm of immigration delegated by Congress under the Immigration and Nationality Act (INA). Specifically, both judges held the Muslim ban in violation of the Act’s nondiscrimination clause, 8 USC 1152, and delineated grounds for entry restrictions by a President, 8 USC 1182(f).

Judge Watson felt the Proclamation’s reasons for arriving at the list of countries banned were, “inconsistent with and do not fit the restrictions that the order actually imposes,” and that the Proclamation “improperly uses nationality as a proxy for risk.” He further lists three main reasons why the Proclamation’s evidentiary findings fall short: it presents no evidence that nationality alone is linked to a propensity to commit terrorism; there is no explanation as to why existing law is insufficient; and there are “internal incoherencies that markedly undermine [the Proclamation’s] stated ‘national security’ rationale”.

Judge Chuang ruled on the INA as well, but also felt the Proclamation, like the previous bans, violates the Lemon Test of the Establishment Clause of the First Amendment by having a religious-based motive driving the policy. The judged noted, “...the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation.”

Next Steps

At present, Trump’s Proclamation remains in force with respect to only specified government officials from Venezuela and the exceedingly rare North Korean national who attempts to immigrate to the US. Nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia may enter the US subject to pre-existing immigration law. This may change, however. The status quo rests on a temporary restraining order and a preliminary injunction. The government will likely appeal these measures, and full hearings on the merits are unlikely to, but may, produce different results in either the District or Appeals courts.

The Trump administration has fought judicial challenges to previous iterations of the Muslim ban tooth and nail. So it is no surprise that the White House has already announced that the “Department of Justice will vigorously defend the President’s lawful action,” which DOJ plans on doing “in an expeditious manner.” The government will face uphill battles in front of the respective Courts of Appeals for the cases, the 4th and 9th Circuits. Both appellate courts ruled against the previous iterations of the Muslim ban, and both of the most recent District Court decisions outlined above quote heavily from those previous Appeals Court rulings as relevant precedent. Facing likely failure at the appellate level, the government is surely preparing for the Supreme Court.

While the Supreme Court has not yet ruled on the substance of the Muslim ban, its June ruling narrowing similar lower court injunctions to those above included explicit deference to the President’s national security claims, perhaps tipping the Court’s hand as to how it may rule on the case more broadly. Like Judge Watson, any substantive ruling by the Supreme Court will likely attempt to avoid ruling on Constitutional grounds if not necessary. However, relying on statute may force the Supreme Court into an uncomfortable tension with Supreme Court precedent such as Galvan v. Press 347 U.S. 522 (1954), which affirmed the INA and the “broad power of Congress over the admission and deportation of aliens”.

Forecasting how nine justices will rule is notoriously difficult, and important stages of litigation lay ahead before the merits of the Muslim ban reach the high court again. When the ban inevitably comes before the Supreme Court again, the justices should remember, as the lower courts have, that the safety, equality, dignity, and familial integrity of millions of Muslims here and abroad await a judiciary grappling with discrimination under the guise of national security and the limits of executive authority.

Access to Justice, Constitutional Interpretation, Executive Power, Immigration, National Security and Civil Liberties, Separation of Powers and Federalism