The Latest Muslim Ban Litigation

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.

Evading Review: The Administration’s Muslim Ban Arguments

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

The Trump Administration’s consolidated Muslim Ban cases, Trump v. IRAP and Trump v. Hawaii, were set for oral arguments today, October 10. However, the president released a Proclamation late last month to replace the challenged Executive Order, prompting the Supreme Court to remove the case from the argument calendar and request briefs on October 5 detailing whether litigation surrounding the now overridden and expired Executive Order is moot and thus should be denied further consideration.

The Government’s filing asserted that this case reaches the very definition of moot, arguing that the plaintiffs are asking the Court to address an issue of no practical importance by litigating an expired law. Further, the new Proclamation differs in substance and cannot be considered a mere continuation of the previous Executive Order. The Government writes, “If respondents (or anyone else) believes the Proclamation violates their rights, they can file new challenges...”

This simple and strict view of mootness is an attractive argument, and will allow the conservative members of the bench the rhetorical ammunition needed to side with the Government in revoking certiorari from the case entirely. This would avoid a substantive Constitutional assessment of the Administration’s Muslim Ban, requiring a new round of litigation to once again reach the Court. 

Both filings from the ACLU and the State of Hawaii focus on the persuasive argument that the Government voluntarily created conditions for mootness, an exception in the case law. They argue that the Government “chose not to seek expedited merits review that could have been completed before the 90-day ban expired,” “chose to issue a proclamation just two weeks before oral argument,” and “reinstated effectively the same conduct in a new form.” The plaintiffs clearly felt this was the best argument for the Court, as it is detailed extensively in both filings.

There is another exception to mootness that received little attention from the plaintiffs, however. Legal questions which are capable of repetition but are brief enough to be considered moot by the time they reach the Court are not able to evade judicial review. As the Government notes, this exception applies “where ‘the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,’ and ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.’” However, in reality the Proclamation is substantially the same policy as the previous Executive Order, showing that a vast majority of the impacted parties will indeed be subject to the same actions. Indeed, this exception brings to the fore one of most important policy aspects of this case.

The Proclamation itself allows the Government to add and remove countries from the banned list at will without external review, and further allows for the granting of individual waivers to the travel ban. Based on habitual Administration rhetoric, there is no reason to believe Trump will not add additional Muslim countries to the list, such as Turkey. Importantly, these flexible policies allow the Government to grant exceptions to any potential litigant’s family or home country in an effort to avoid standing and claim mootness. In fact, the Government showed a willingness to use such a tactic in claiming mootness in Thursday’s filing, arguing, “...the claims of the only two individual respondents whom the courts of appeals found to have standing became moot wholly apart from the Order’s expiration when their relatives received visas.”

If the Supreme Court sides with the Government in ruling existing Muslim Ban challenges moot, the Administration will continue to impose a Constitutionally dubious and unchallenged travel ban on any individual from the specified countries and classes who is not able or willing to file suit against the Government. More broadly, if the Court rules that the 90-day Muslim Ban can evade substantive constitutional review, the precedent is set that this, or any future, administration is free to violate the Constitution so long as it is done on a temporary basis.

*Photo credit: By Rhododendrites (Own work) [CC BY-SA 4.0 (], via Wikimedia Commons

The Attempt to Make the Muslim Ban Permanent

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

On September 24, the Trump White House released a new Presidential Proclamation effective October 18, which essentially makes permanent the temporary Muslim/refugee Ban the president signed earlier this year. The Proclamation, like Trump’s previous Muslim Ban actions, relies on the fundamental assumption that foreigners, and specifically Muslims and Arabs, pose a heightened threat. Arguing “...foreign nationals who may commit, aid, or support acts of terrorism, or otherwise pose a safety threat…” the Administration holds tightly to creating xenophobic fears, despite no existing evidence to show that foreign nationals commit crimes at greater rates than citizens.

Whereas the temporary travel ban, EO 13780, included Iran, Libya, Somalia, Sudan, Syria and Yemen, the Sept. 24 proclamation removed Sudan and added Chad, North Korea, and Venezuela. It also added nuance by providing a rationale to the Administration’s additions to the banned countries list, something we hadn’t seen with previous iterations.

While flawed at best, the Administration will undoubtedly point to their nuanced process, the various exceptions to the travel restrictions, the allowance for case-by-case waivers, and the addition of non-Muslim majority countries as reasons why the new ban is rational, objective, and constitutional. However, each of these defenses are lacking.

First, the establishment of the process by which the list of countries was created is important for distancing the Administration’s policy from their campaign conclusion that Muslims must be banned from entering the US. This Proclamation argues national security is a compelling state interest and that a travel ban is necessary because technological deficiencies prohibit the US from ensuring the identity of travelers which threatens national security. However, nowhere in the Proclamation does the Administration show that the claimed technological deficiencies, even if they do exist, actually lead to national security threats. At no point does the Proclamation note an instance or statistic to show that the lack of such technologies lead to increased terrorism threats.

Next, the Administration will point to the various exceptions to the travel restrictions and the allowance for case-by-case waivers to show the ban is not a blanket policy, but is narrowly-tailored to target individuals who pose heightened risks. Such provisions are insufficient to protect innocent foreign nationals because the Administration is nonetheless creating a presumption of danger: any individuals from these countries are presumed terrorists unless shown otherwise. Importantly, this presumption existed in the original Muslim Ban while specifically excluding non-Muslims. Further, the exceptions and case-by-case waivers are the same as they were under the temporary Muslim Ban, which nonetheless saw CBP agents harass and detain those who clearly fell under those exceptions, including US citizens who happen to be Arab or Muslim. The Administration’s thinly-veiled attempt to put a neutral face on a discriminatory policy nonetheless had the discriminatory impact it desired.

Last, Trump will claim that the addition of Venezuela and North Korea prove that the policy does not target Muslims. These additions are cosmetic and designed to hide the ban’s original intent. In North Korea travel to the US is already illegal, and most North Koreans seeking refuge in the US do so on South Korean passports. As for Venezuela, the ban involves a limited set of government officials and their families. This means that Muslim travelers remain the focus of the policy and the group most impacted.

Importantly, under the Proclamation there is no stated venue for individuals to challenge their treatment, and the Administration can, at will, expand the ban to broader classes of individuals or more countries. Allowing the Trump Administration to ban travel from these eight countries under this Proclamation opens the door for the ability to ban entire ethnic or religious groups without individual redress.

Regardless of how the Court handles the existing dispute over the first Muslim Ban, the permanent version via proclamation explicitly aims to limit the presence of the Arab and Muslim populations in the US through targeted immigration control. Such policies and intentions are evocative of the shameful Chinese Exclusion Act of 1882, and subsequent discriminatory US immigration policies, which banned the immigration of Chinese laborers to the US because they “endanger[ ] the good order of certain localities”. Contemporary US Senator George Frisbie Hoar of Massachusetts called the Chinese Exclusion Act “nothing less than the legalization of racial discrimination.” He was correct then, and the same is correctly said of the most recent  Muslim Ban Proclamation. Congress must now act again to end these bigoted, xenophobic policies emanating from the White House. Our country deserves nothing less.