The revised Executive Order of President Trump “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination,” was how Chief Justice Gregory of the Fourth Circuit Court of Appeals described the EO in the Court’s decision not to reinstate the travel ban. The appeal was heard following federal courts in Hawaii and Maryland halted the revised EO. Attorney General Jeff Sessions has declared that Trump’s administration will appeal the decision to the Supreme Court.
One of President Trump’s first acts in office was to sign the “Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States,” which was blocked shortly thereafter by a District Court judge in Seattle, Washington. The Ninth Circuit Court of Appeals then reviewed the temporary restraining order on the ban issued by the Seattle judge, ultimately upholding the lower court’s decision. Although President Trump tweeted that he would appeal the Ninth Circuit’s decision, the administration instead released a revised EO in March. While the revised EO attempted to assuage criticisms of religious discrimination in the first EO, the courts were still concerned by statements made by Trump during his presidential campaign that seemed to reveal discriminatory motivations underlying the EO. The EO targeted several majority Muslim countries, preventing travellers, immigrants, and refugees from entering the US. Yet, the Trump administration argued that the countries were included in the travel ban because they represented a terrorist threat, and had nothing to do with religion. The release of the first EO threw airports into chaos as many travellers were detained on arrival without cause and sparked international turmoil, as many were unclear how the travel ban would affect them, such as legal permanent residents of the US returning from visits to one of the listed countries.
While the travel ban seemed to accomplish President Trump’s campaign calls for “a total and complete shutdown of Muslims entering the United States,” the administration responded that campaign statements should be ignored, since they do not necessarily speak to the circumstances and reasoning behind the issuance of the EO. President Trump’s campaign statements raise interesting questions about the extent to which the courts can read beyond the four corners of the text to infer purposes and legislative intent. In addition to the campaign statements, further evidence of religious and racial animus had come to light when former mayor of New York City and Trump adviser, Rudy Giuliani, commented that President Trump had asked him how to effectively draft a legal “Muslim ban.”
As well, the dissenting judges in this most recent decision reasoned that it was not the place of the courts to question presidential actions regarding issues of national security. Nevertheless, the majority ruled that the President does not have absolute power and that such decisions are subject to judicial review, especially given the potential violation of the Establishment Clause in the First Amendment. The Establishment Clause prevents state religious discrimination by prescribing that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In her concurring judgment, Justice Thacker wrote that the administration’s argument that the ban was premised on a concern for national security was unsupportable, since “[t]he Government has not consistently applied the criteria it claims it used, and the reason seems obvious — and inappropriate.”
The Ninth Circuit Court of Appeals also heard an appeal on a block to the travel ban recently and is expected to release their decision soon. If the Ninth Circuit provides a differing decision to the Fourth Circuit, the Supreme Court may be more likely to agree to hear an appeal to resolve the disparity. President Trump’s executive orders have been the subject of much controversy and litigation, but the Supreme Court will hopefully provide some finality to the question of the EO’s constitutionality, should they decide to hear the case.
This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.