Trump’s Muslim Ban: Religious Animus “All Out in the Open”

by Eric Rothschild, Senior Litigation Counsel, Americans United for Separation of Church and State and Andrew Nellis, Constitutional Litigation Fellow, Americans United for Separation of Church and State

On December 7, 2015, then-candidate for President Donald Trump issued a statement “calling for a total and complete shutdown of Muslims entering the United States.” It was met with condemnation from leaders across the political spectrum, including then-Governor of Indiana Mike Pence, who wrote that “[c]alls to ban Muslims from entering the U.S. are offensive and unconstitutional.”

Trump, however, never backed away from his position. Instead, he consciously and expressly changed his rhetoric, so that he was, in his words, “talking territory instead of Muslim.” But the underlying policy, he explained, remained the same. And one week into his presidency, he followed through on his plan, rushing out an executive order—without consulting any of the government’s national-security experts—that immediately barred nationals of seven overwhelmingly Muslim countries from entering the United States. Public officials and ordinary citizens protested in horror against the prejudicial policy, and the courts quickly stepped in to block it.

Fast-forward 451 days. The Supreme Court is, finally, about to hear argument on whether to affirm preliminary injunctions of the current version of Trump’s Muslim ban—only a slight modification of the original—either under the First Amendment’s Establishment Clause (as the Fourth Circuit has ruled) or under the Immigration and Nationality Act (as the Ninth Circuit has ruled). These two courts of appeals have repeatedly held that the various versions of the President’s ban should be enjoined—as has almost every other court that has considered them. This shouldn’t be a hard case—yet the Supreme Court’s decision is far from certain. Why?

Two reasons come to mind.

First, this case is unprecedented. Although parallels have rightly been drawn—both by opponents of the ban and by Trump himself—to the internment of Japanese Americansduring World War II, that reprehensible internment did not involve religious animosity—which so clearly drives the Muslim ban. In a country founded as a beacon of freedom for religious minorities fleeing persecution, the idea that the federal government would institute a policy that denigrates and excludes members of a particular faith is—as political leaders of both parties recognized in December 2015—shocking. It’s fundamentally un-American.

Before President Trump’s Muslim Ban, the federal government had never engaged in conduct so plainly hostile to one religious faith, and to the core values expressed in the First Amendment’s Religion Clauses. And thus, no court had previously said—because no court had previously had to say—that the government cannot vilify and ban from our country members of an entire faith. As Judge Harris of the Fourth Circuit wrote in her concurring opinion in International Refugee Assistance Project v. Trump, “[t]he principle that government decision-making should not be informed by religious animus is so well and deeply understood in this country that there are few violations recorded in the case law.”

Hence, as we argue in our amicus brief, filed on behalf of the plaintiffs in Iranian Alliances Across Borders v. Trump, the strict prohibition against official religious preferences is, as the Supreme Court said in Larson v. Valente, the “clearest command of the Establishment Clause.” In deciding Trump v. Hawaii, the Court need not concern itself with the detailed Establishment Clause tests that have developed over decades for determining the legality of religious displays or aid to religious schools. Rather, the Court need only see the Muslim ban for what it is: a violation of the core First Amendment principle that no one religion may be treated better or worse than all the others.

The second reason why this case may seem closer than it should is that the targeting of Muslims that was explicit on the campaign trail has been obscured by reference in the President’s Orders to countries, not the Muslim faith. But that was by design: As then-candidate Trump explained on live television, “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.” “[C]all it whatever you want,” he said. “We’ll call it territories.” And so Trump recruited Rudy Giuliani to figure out how to enact a “Muslim ban” without using the word “Muslim,” in the hope that the subterfuge might pass legal muster.

Although the President’s first attempt at a Muslim ban failed—as did his second—the administration has now tried further to obfuscate the religious animus that is the ban’s raison d’ȇtre. Whereas the previous attempts to ban Muslims involved the President’s hand-picking of countries for exclusion, this third time around, Trump enlisted his subordinates to engage in what he described as a “worldwide review” of foreign countries’ abilities to screen and vet their travelers.

To no one’s surprise, the list of countries banned after the worldwide review is virtually identical to the list of countries banned before the review—though the Trump administration threw in a ban on North Koreans and a narrowly targeted ban on visits by certain Venezuelan government officials for good measure. As we explain in our brief, though the government insists that the existence of the worldwide review disconnects the current iteration of the ban from the religious animus that motivated its precursors, the government has steadfastly refused to reveal—even in camera—any part of the process or the results of that review, thus offering the judiciary nothing more in the way of assurance than its own say-so.

That should not be enough. When the evidence of religious animus, as Judge Harris put it, “is all out in the open,” the government should not be able to whitewash a clear constitutional violation by simply asserting a secret national-security justification. The Supreme Court warned just last year that national security “must not become a talisman used to ward off inconvenient claims.” Trump v. Hawaii offers the Court the opportunity to prove that it meant what it said.

Eric Rothschild is Senior Litigation Counsel and Andrew Nellis is a Constitutional Litigation Fellow at Americans United for Separation of Church and State, a national litigation and advocacy organization dedicated to protecting religious freedom for all. Americans United, along with Muslim Advocates and Covington & Burling LLP, represent the plaintiffs in Iranian Alliances Across Borders v. Trump, a challenge to the Muslim ban that is currently awaiting certiorari in the Supreme Court.

Affirming the Rule of Law

Firing Deputy Attorney General Rod Rosenstein or any investigator in the Russia probe without cause would clearly create a constitutional crisis. We must get ready to respond now. That’s why I asked the Federalist Society to join us “in a united effort to avert a constitutional crisis relating to Special Counsel Robert S. Mueller’s investigation into Russian meddling in the 2016 presidential election” in a letter, covered by Reuters, The Hill and Above the Law.

And today over 400 ACS law students pledged “to ensure nobody is above the law” if Trump attempts to undermine Special Counsel Mueller. “If the Special Counsel or Deputy Attorney General is fired, we will find our voice and use it,” stated the student letter.

President Trump and his enablers have engaged in a nine-month long smear campaign against the inquiry into Russian meddling in the 2016 presidential election. The aim of the campaign against the Mueller investigation – the most successful attack against officials in the executive branch since Joe McCarthy – is clear: obstruction of justice. We are watching a slow-motion Saturday Night Massacre.

In a recent editorial, appropriately titled “The President Is Not Above the Law,” the New York Times concluded that “if the president does move against the investigators, it will be up to Congress to affirm the rule of law, the separation of powers and the American constitutional order.”

Rule of law is central to our mission. ACS members need to play a leadership role in defending our system of checks and balances.  In anticipation of some nefarious action by the White House, ACS is prioritizing this aspect of our work.

Help us organize your community. Now is the time to take a stand.

Religious Freedom is not a License to Discriminate

On the heels of President Trump’s proclamation on Religious Freedom Day, the Department of Health and Human Services (HHS) issued a controversial rule on January 19 that allows healthcare providers to deny care to patients for religious, moral or any other reasons. The department also created a new Conscience and Religious Freedom Division within the Office of Civil Rights. These efforts are at the heart of a carefully crafted strategy by religious conservatives to radically redefine religious freedom and roll back progress on basic civil liberties— most notably a woman’s constitutional right to abortion and the rights of LGBT people.

By March 27, the department received more than 200,000 public comments regarding the new rule, many of which expressed deep concern about its broad exemptions for individuals and corporations to deny people care. Roger Severino, head of the HHS Office of Civil Rights claims that these measures are meant to better balance conscience and religious freedom with other civil liberties. Indeed religious freedom is an important civil right. But as Catholics for Choice and many other partners who submitted comments have noted, the rule leaves patients completely unprotected from seeking the ethical care they may need based on their own beliefs and moral decision-making. Importantly, it does not address what protections a patient has in emergency situations, such as miscarriage management, post-abortion care, or the provision of emergency contraception. In sum, it places absolute primacy on the right of ultraconservatives to deny patients care on the spot, without giving advance notice of their objection—leaving the door wide open for women and LGBT people to be discriminated against. It entirely misses the rights and responsibilities we have as citizens protected by our constitution’s first amendment—that you have both the right to freely exercise your beliefs but you also have the responsibility to allow others to express their own beliefs free from discrimination.

Individuals can and must be afforded the right to consciously object to provide services that go against their religious beliefs. Reverence for individual conscience is foundational to Catholicism and other religious traditions that make up this country. That is why, as Former Director of the HHS Office of Civil Rights Jocelyn Samuels underscores, the Obama administration enforced laws that allowed medical providers to consciously object to providing healthcare services, such as abortion, that violated their religious beliefs. Yet as the American Medical Association Code of Medical Ethics makes clear, the freedom to act according to conscience is not unlimited.

When consciously objecting, providers must consider the damage done to patients who are left without care and ensure unfettered access to the services they seek through speedy referrals. That patient absolutely has the right to seek the care they need and are legally protected to receive; and yet oftentimes they are not in as privileged a position as a provider. Increasingly, women—especially women of color and women living in rural areas—face hardships in accessing reproductive healthcare, such as birth control and abortion services. This is a growing trend as more hospitals and insurance companies merge with Catholic-owned healthcare systems for financial reasons, and find themselves forced to deny women reproductive options that are prohibited by the Ethical and Religious Directives that guide Catholic-owned or affiliated health enterprises. As California Assemblymember David Chiu indicates, women are also often lured into fake health centers that actively shame, deceive, and deny them basic consumer information about state funded reproductive health services that may be available to them. Similarly, LGBT patients and especially transgender patients face rampant discrimination in healthcare provision. The video below illustrates how religious refusals directly impacted the lives of three women:

Now, as President Trump seeks to slash the HHS budget, will the Office of Civil Rights ensure that the civil liberties of women and LGBT individuals are also protected when they run up against a provider who refuses them care or even a referral to receive that care elsewhere? How will this office balance thousands of complaints it receives under civil rights laws and HIPAA compared to the 34 religious refusal-related complaints it received since President Trump’s election?

To make matters worse, HHS may release a follow-on rule requiring healthcare institutions that receive HHS funding to certify they are complying with the conscience statutes. Those that are found negligent could lose funding. It is clear that these new efforts by HHS are meant to elevate the concerns of religious conservatives over the rights and protections of all other citizens HHS is supposed to serve. And the elevation of religious refusals at HHS is not in isolation.

Across the federal government and in key court battles—from NIFLA v. Becerra to Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—religious conservatives are undertaking a concerted effort to carve out broad religious exemptions that seriously hinder other civil liberties. Our government, and indeed our first amendment, is meant to protect the rights of all of our citizens, not one narrow slice of religious America. While the current administration will undoubtedly continue to use its executive powers to privilege the religious right, our courts should seek a balanced approach that protects the civil liberties of all of our citizens.

Syria: Striking Without Law

The moral imperative to respond to another ghastly chemical attack on civilians in Syria was powerful. The justification of destroying chemical weapons facilities and stockpiles to prevent or at least hinder future brutalities was sensible and narrowly tailored — although the lack of an overall strategy for after the strikes and the broader Syria conflict is troubling. But what about the law? Moral justifications are an essential tool for mobilizing public support and justifying the decision to put U.S. personnel in harm’s way, but they do not provide legal authority or substitute for solid legal arguments.

The use of military force abroad implicates three legal regimes: domestic law, the international law governing the resort to force (the jus ad bellum), and the law of armed conflict. Each demands a separate analysis and each is a necessary component of lawfulness overall — and it is here that the strikes fall quite a bit short. Although the conduct of the strikes appears to offer a textbook example of compliance with the targeting obligations of the law of armed conflict, finding appropriate legal authority under either U.S. domestic law or the international law governing the resort to force is a much harder sell.

Domestic law: Secretary of Defense James Mattis asserted that the President had constitutional authority to launch the strikes under his inherent authority as Commander in Chief under Article II of the Constitution, to defend the “important national interest in averting a worsening catastrophe in Syria, and specifically deterring the use and proliferation of chemical weapons.”  This theory is an aggressive expansion of the President’s authority under the Constitution to initiate military operations unilaterally, stretching far beyond the President’s limited authority to repel attacks. Indeed, since no President would argue that he or she is using force for no national interest at all, this theory effectively gives the President a blank check. Finally, the existing Authorizations to Use Military Force from 2001 and 2002 simply are not relevant to the strikes: they apply to nations, organizations and persons responsible for the 9/11 attacks and to the threat from Iraq, not to Syrian forces or the Syrian regime.

Jus ad Bellum: The post-war international architecture, in particular the United Nations Charter, rests in many ways on the prohibition against the use of force by one state against the territorial integrity or political independence of another state. Clearly, launching strikes against chemical weapons facilities in Syria implicates this foundational principle. The key question, therefore, is whether any of the accepted exceptions to the prohibition apply here: the consent of the territorial state, United Nations Security Council authorization, or self-defense. Needless to say, the first two are non-starters. For the third, a state may use force in self-defense if it is the victim of an armed attack or an imminent armed attack. One theory floated is that the U.S. could use force in self-defense given the 2,000 U.S. troops in Syria engaged in operations against ISIS, but there is no information suggesting that Syrian forces are even contemplating any such attack against U.S. forces. Indeed, the administration did not make any argument of self-defense.

Rather, the U.S. justification for the strikes rests on Syria’s violations of international law, which are manifest and manifold. Notwithstanding the moral imperative the chemical attacks might generate, however, retaliation or punishment for the use of chemical weapons or other violations of international law, or deterrence against the future use of such weapons are not lawful reasons to use force. (Although a few states, including the United Kingdom, recognize a narrow exception for humanitarian intervention, the United States does not, and there is no international consensus that such an exception is accepted international law.)  As a result, there is no international legal authority for the strikes — as signaled by the administration’s complete silence on the issue of any such authority.

Law of Armed Conflict: Every description of the conduct of the strikes affirms that the United States carefully complied with the law of armed conflict in carrying out the strikes. The law of armed conflict applies to the conflict in Syria, which is a series of parallel and overlapping conflicts between and among multiple parties, both state and non-state. Although the United States and Syria were not already in an ongoing armed conflict (rather, they are both parties to one or more conflicts taking place in Syria, but not with each other), the strikes constituted an international armed conflict between the United States, the United Kingdom and France, on one side, and Syria on the other, for the short duration of the operation. Under international law, any dispute between two states leading to the intervention of their armed forces is an international armed conflict, no matter if it is short-lived or only one-sided in the use of force. The law of armed conflict principles of distinction, proportionality and precautions therefore set forth the key obligations for the conduct of the strikes.

First, the targets chosen were military objectives — weapons production, storage and delivery facilities are intrinsically military objects making an effective contribution to military action and their destruction offered a definite military advantage. Second, reports indicate that there were no civilians at or in the vicinity of the attacks, so the attacks more than fulfilled the principle of proportionality’s obligation to minimize harm to civilians. Finally, the allies took other extensive precautions to minimize harm to civilians and civilian property, including the time of attack (at dawn) and the selection of targets to avoid targets located in more heavily populated areas or that might release dangerous chemicals.

The United States declared that the strikes were justified, legitimate, and proportionate. The horrific nature of President Assad’s attacks on his own people — chemical and conventional — surely offer a textbook example of “legitimate” or “justified”. But this legitimacy does not derive from international law. Compliance with the law of armed conflict in the conduct of the strikes does not create international law authority to resort to force under the jus ad bellum. Neither does moral legitimacy, no matter how powerful.

Nobody is Above the Law, Not Even the President

by Sarah Mahmood, Stanford Law School ‘19, ACS Co-President 2017-2018 and Sophia Carrillo, Stanford Law School ‘18, ACS Co-President 2016-2017, Next Generation Leader

The weekend of January 27, 2017, we didn’t do any of our constitutional law reading. Instead, we swapped the library for the airport for a different kind of legal education. As we sat in circles on the airport floor, holding makeshift signs affirming our support for love and justice, we joined the crowd in its many choruses. And after “No bans, no walls!” came another refrain, one that reminded us of why we had applied to law school in the first place—“Thank you, lawyers!”

Punctuated by claps, the chant was a moving tribute to the lawyers who had worked all night to free those detained at the airport as a result of President Trump’s travel ban. It was a humbling moment, one that reminded us that even when it seemed like everything was falling apart, we were not helpless, but there to help put things back together—that as lawyers and law students, we had both the immense responsibility and the incredible privilege to pursue justice and uphold the rule of law.

We have written this letter to carry out that duty, which starts not with passing the bar, but on our first day in the classroom. As our elected leaders once again threaten to undermine our democracy, we instead take on the charge to protect our country. Nobody is above the law, not even the President—and as current law students and future lawyers, we promise to safeguard this founding principle of our nation.

Safe Healthcare Depends on Whistleblowers

**This is part of ACSblog's Symposium on Whistleblowers.

For centuries, the integrity of healthcare delivery has been premised on the words "first do no harm" which - though not technically part of the Hippocratic Oath - seem to find their origin in teachings of the Greek Physician, Hippocrates, who lived more than two millennia ago. Whatever the origin, it is a phrase which views healthcare delivery through the eyes of the physician; the presumptive gatekeeper of healthcare delivery.

Today, it is true that physicians are still the gatekeepers. Yet, the swing of their gate is now subject to influences that are beholden to money and not medicine.

Doctors are the middlemen for drug and device manufacturers; their decisions to write prescriptions are often premised on company spin sometimes touting interpretations of cherry picked data neatly planted into publications that have the aura of reliability. This is a strategy employed by “Big Pharma” to cause product utilization well beyond the boundaries of the FDA approved package label. Factor in speaker fees to doctors to give canned speeches for thousands of dollars a pop, drug representatives who are trained to hint at ways that products can be used for purposes outside their approved indication, and company marketers who strategize about how to downplay side effects, and at the end of the day, the doctor gatekeepers are no longer able to swing their gate based on honest medical information.

If this is disturbing, consider that Wall Street and the investment bankers own an interest in hospitals, nursing homes and emergency care facilities. Pharmacy benefit managers (PBM's) - influenced by rebates from Big Pharma - decide what drugs are going to be “preferred” by the health and welfare funds that reimburse us for our prescriptions. And did you ever wonder why more psychiatrists are writing prescriptions for drugs as opposed to engaging patients in long term therapy? The answer? It is drug company spin combined with the way insurance companies reimburse.

Here is the point; the obligation to do no harm has been compromised by non-medical monied interests that influence our health care delivery system. This we know from the efforts of whistleblowers who risked their careers to surface information that has caused most of the large pharmaceutical companies, and others in the health care delivery business, to admit to criminal violations or pay significant dollars to reimburse the Medicare and Medicaid systems for drugs, devices and treatments that were not medically justified and/or have placed patients at risk.  If you think we are making this it up, check out these headlines from Department of Justice Press Releases reporting on resolution of cases initiated by whistleblowers: Abbott Labs to Pay $1.5 Billion to Resolve Criminal and Civil Investigations of Off Label Promotion of Depakote; Wyeth Pharmaceuticals Agrees to pay $490.9 million for Marketing Prescription Drug Rapamune for Unapproved Uses; Pfizer to pay $2.3 Billion for Fraudulent Marketing; Glaxco SmithKline to Plead Guilty and Pay $3 Billion to Resolve Fraud Allegations and Failure to Report Safety Data; Amgen to Pay $24.9 million to Resolve False Claims Act  Allegations; Community Health Systems to Pay $98.15 Million to Resolve False Claims Act Allegations.

And it is not just the drug industry, whistleblowers have exposed the malfeasance of hospital and nursing home chains, outpatient clinics, the insurance industry and unfortunately even doctors who are sworn to do no harm.

The most valuable legal channel for whistleblowers has been the Federal False Claims Act (FCA), a statute dating back to 1864. Through statutory revisions over the years, the FCA allows individuals to sue in the name of the United States to recover monies that have been paid out because of fraudulent conduct or false statements that are made to secure payment from the government fisc. The statute imposes civil penalties and treble actual damages. And while the FCA allows for the recovery of federal dollars, over twenty states and even some cities have passed local statutes allowing for the recovery of local dollars. These statues have prudential standing requirements which limit suits to those brought by individuals or entities with information that generally cannot be found in media reports unless the whistleblower - known as a Relator - is an original source of the information, meaning that he or she has some knowledge  of the wrongdoing that is independent of and materially adds to what is a matter of public record as defined by the technical terms of the statute.

Litigation under the FCA has recovered billions in federal and state dollars. More importantly – as DOJ press releases confirm -- FCA litigation has surfaced pharmaceutical marketing schemes that have exposed patients to medically unnecessary drug regimens and potential hazards. FCA litigation has also exposed practices by hospitals and drug distributors that are either not medically necessary or that have placed patients at risk of harm.

For whistleblowers suing under the FCA and state/local legislative equivalents, no doubt the monied interests on Wall Street considers them snitches. Yet, these “snitches” are integral to regulatory compliance particularly - believe it or not - when the regulators themselves depend on Wall Street interests to regulate.  Consider that the Center for Medicare and Medicaid Services (CMS) -- in theory -- is responsible for doling out trillions of dollars annually to pay for drugs, medical diagnosis, and treatment. Does CMS review each claim for reimbursement? Of course not; CMS contracts with private vendors to review claims and make payments. And for drug uses outside the FDA approved indication, these private vendors rely on other private entities - known as the "Compendia" - to ascertain whether a drug use has some level of medical acceptance.  As to the Compendia, the entities that publish them may rely on the very doctors who are speakers for the drug industry.

How do we know all this? Whistleblowers! They bring the cases that stir the dirt to the surface; they expose impropriety to sunlight. They make our healthcare system safer. And no Wall Street, they are not snitches.  Rather, they are integral to compliance enforcement.

*Guttman and Buschner have represented whistleblowers in cases brought under the False Claims Act against Abbott Labs, Glaxco SmithKline, Amgen, Pfizer, Wyeth, Celgene, Pharmerica, Omnicare, and Community Health Systems which collectively have returned over $5 Billion to the government.