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Travel bans third iteration likely unconstitutional.

Byline: Rebecca M. Lightle

The appellate court affirmed a nationwide preliminary injunction on the Trump administrations travel ban, which the district court held was a likely violation of the First Amendments guarantee of religious freedoms. Background Seven days after taking office, President Donald Trump signed Executive Order 13769 (EO-1), suspending immigrant and nonimmigrant entry of foreign aliens from seven predominantly Muslim countries into the U.S. In legal challenges by individuals, organizations, and states across the nation, enforcement of EO-1 was soon blocked by injunction. Soon afterward, the president issued EO 1370 (EO-2), which was given the same title as EO-1 and bore many similarities to its predecessor. Also like its predecessor, EO-2 was soon challenged in multiple courts and preliminarily enjoined. On September 24, 2017, the president issued Proclamation 9645 as a successor to EO-2. It indefinitely suspends the entry of some or all immigrants and nonimmigrants from eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Six of these countries are majority-Muslim and have a combined population of approximately 150 million people. The Proclamation applies only to foreign nationals who are outside the U.S. on the effective date and do not have a valid visa or qualify for a visa or other valid travel document. Waivers are permitted, but they are discretionary and require the applicant to prove that denying entry would cause undue hardship, that entry would not pose a threat to the national security or public safety of the U.S., and that entry would be in the national interest. As with EO-1 and EO-2, the Proclamation faced swift legal challenge within the 4th Circuit. This court now considers three cases consolidated for appeal, brought by 23 individual Plaintiffs and seven organizational Plaintiffs. All Plaintiffs sought injunctive and declaratory relief. The district court granted a preliminary injunction against enforcement of the Proclamations entry restrictions, but the U.S. Supreme Court stayed injunction pending appellate review. In light of the stay, the relevant agencies have fully implemented the entry restrictions laid out in the Proclamation. Justiciability When evaluating standing to sue, the court assumes that plaintiffs claims would succeed on the merits. Here, numerous individual Plaintiffs have sufficiently alleged that the Proclamation which the court must assume unconstitutionally disfavors Islam caused them to suffer two types of injuries. First, as members of the disfavored religious group, they are suffering feelings of marginalization and exclusion. They allege that, since the initial travel ban was announced, they have frequently experienced instances of Islamophobia, and this new Proclamation makes them feel insulted, targeted, and personally attacked. One Plaintiff states that he feels like an outsider in the country that I call my home and fears for the safety of himself and his loved ones. Another Plaintiff stated that the Proclamation makes him feel that he and other American Muslims are unwanted, different, and somehow dangerous merely because of [their] religion. Second, individual Plaintiffs are experiencing prolonged separation from close family members, including spouses and elderly parents, who have been deemed categorically ineligible for visas. For example, one Plaintiffs wife is unable to travel to the U.S. while their one-year-old child, born with severe birth defects, undergoes life-threatening surgeries in this country. These are actual, concrete injuries that personally affect the individual Plaintiffs. Thus, they have suffered a cognizable injury-in fact. Both categories of injury can be remedied if the Proclamation is enjoined. On these grounds, two associational Plaintiffs also have standing to sue because they have identified at least one member who would have individual standing and because the interests at stake are germane to their organizational purpose. There is no reason the individual members must participate in the lawsuit. In addition, the Plaintiffs claims are ripe for review even if their relatives waiver requests have not yet been denied. Ripeness comes from the imposition of the barrier in the first place. The relief sought is not a visa or waiver, but simply that the Plaintiffs relatives be allowed to go through the same individualized vetting process that the executive branch applies to nationals from all other countries. That process has already been denied them. Therefore, their claims are justiciable. Establishmentclause The Plaintiffs have met their high burden of demonstrating that the Proclamation is unconstitutionally tainted with animus toward Islam. The First Amendment mandates governmental neutrality between religions. Assuming without deciding that the Proclamations proffered purpose is facially legitimate, U.S. Supreme Court jurisprudence requires the court to consider whether the purpose is bona fide. An action is not bona fide if plaintiffs make a particularized affirmative showing of bad faith. The entire premise of review under the Lemon test is that facially neutral government actions can violate the Establishment clause. Thus, the Proclamations stated objective is not dispositive. In this extraordinary case, the governments proffered rationale for the proclamation is at odds with the statements of the president himself. The fact that the president has publicly stated a constitutionally impermissible reason for the Proclamation distinguishes this case from others. In no prior cases have plaintiffs even alleged that any government official made public statements contradicting the asserted bona fide reason for the challenged action. In this case, by contrast, the Plaintiffs offer undisputed evidence of anti-Muslim bias. This evidence includes the presidents disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the U.S.; his subsequent explanation that he would effectuate this Muslim ban by targeting territories instead of Muslims directly; the issuance of EO-1 and EO-2 addressed only to majority-Muslim nations; and statements by the president and his advisors that the Proclamation has the same goal as EO-1 and EO-2. Even though the president and his advisors have repeatedly relied on his pre-election statements to explain actions related to the travel ban, the court need not rely on pre-election statements to assess the constitutionality of the Proclamation. Only a week after taking office, the president issued EO-1, which banned the entry of citizens of six Muslim-majority countries, provided exemptions for Christians, and lacked any asserted evidence indicating a genuine national security purpose. The very next day, an advisor to the president explained publicly that EO-1s purpose was to discriminate against Muslims. A reasonable observer could certainly conclude that, in banning million Muslims from entry into the U.S., EO-1 was crafted to deliver on candidate Trumps promise to ban Muslim immigration to the U.S. After EO-1 was enjoined, the president issued EO-2, which he and his advisors characterized as being substantially similar to EO-1. In the months that followed, the president continued to express his desire to return to the original Travel Ban, rather than the watered down, politically correct version in EO-2. One day after the president tweeted that the Justice Department should have stayed with the original Travel Ban, his press secretary confirmed that the presidents tweets are official statements by the President of the United States. The president also continued to express what any reasonable observer could view as general anti-Muslim bias. In an August 17, 2017 tweet, the president endorsed an apocryphal story involving a purported massacre of Muslims with bullets dipped in pigs blood, advising people to [s]tudy what General Pershing did to terrorists when caught. There was no more Radical Islamic Terror for 35 years! On November 29, 2017, the president retweeted three disturbing anti-Muslim videos entitled: Muslim Destroys a Statue of Virgin Mary!, Islamist mob pushes teenage boy off roof and beats him to death!, and Muslim migrant beats up Dutch boy on crutches! The videos were originally tweeted by an extremist political party whose mission is to oppose all alien and destructive political or religious doctrines, including Islam. When asked about the three videos, the presidents deputy press secretary explained that the president has been talking about these security issues for years now, from the campaign trail to the White House, and the president has addressed these issues with the travel order that he issued earlier this year and the companion proclamation. With the presidents staff making the connection express, it is hard to imagine how an objective observer could come to any conclusion other than that the Proclamations primary purpose was to exclude Muslims from the United States. The government correctly points out that the presidents past statements cannot forever taint his future actions. The president could have removed the taint of his prior troubling statements, for example, by ceasing to publicly disparage Muslims. But instead of taking any actions to cure the taint that the court previously found infected EO-2, the president continued to disparage Muslims and the Islamic faith. The face of the Proclamation, read in the context of the presidents official statements, fails to demonstrate a primarily secular purpose and, therefore, does not satisfy the first prong of the Lemon test. Our constitutional system creates a strong presumption of legitimacy for presidential action, and courts often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. The Plaintiffs offer undisputed evidence that the president of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is, thus, not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on religious animosity. Irreparableharm The loss of First Amendment freedoms, including religious freedom, for even minimal periods of time, unquestionably constitutes irreparable injury. Further, prolonged and indefinite separation of parents, children, siblings, and partners creates not only temporary feelings of anxiety but also lasting strains on the most basic human relationships cultivated through shared time and experience. Accordingly, the injuries in this case are not only threatened and likely, but already ongoing. Balanceofequities The balance of equities in this case favors the Plaintiffs, who are likely to continue suffering violations of their Establish Clause rights, rather than the government, which is not likely to be harmed by an injunction against the enforcement of a likely unconstitutional Proclamation. The injunction does not result in the entry of any particular individual who threatens national security; it simply precludes a nationality-based ban. Foreign nationals targeted by the Proclamation are still subject to the standard vetting process and must prove that they are not inadmissible. The Immigration & Nationality Act provides numerous means to exclude individuals who present a risk to the U.S. Nevertheless, the court is bound by the Supreme Courts rationale in partially staying the injunction of EO-2. Accordingly, the balance of equities supports an injunction only to the extent that it affords relief to foreign nationals with a bona fide relationship with a person or entity in the United States. Publicinterest The court holds that it cannot be in the public interest for the president to violate the Establishment Clause. On a human level, the Proclamations invisible yet impenetrable barrier denies the possibility of a complete, intact family to tens of thousands of Americans. On an economic level, the Proclamation inhibits the normal flow of information, ideas, resources, and talent between the target countries and our schools, hospitals, and businesses. On a fundamental level, the Proclamation second-guesses our nations dedication to religious freedom and tolerance. For all the reasons above, the court affirms the nationwide preliminary injunction granted by the district court. Dissent (Niemeyer, J.) The majoritys opinion is demonstrably wrong in virtually every material respect. It fails to recognize more than a century of jurisprudence explaining the deference federal courts owe to the political branches with respect to decisions to grant or deny foreign nationals entry into this country. It ignores the plain language of the Administrative Procedure Act on which the Plaintiffs rely to allege a cause of action that the Act does not provide. It misconstrues the INA, effectively rewriting it to accord with the majoritys own policy preferences and then concluding that the president violated the statute as so revised. It applies a novel legal rule that provides for the use of campaign-trail statements to recast later official acts of the president. Finally, it utterly subverts longstanding Supreme Court precedents on the Establishment Clause. For these reasons, I would reverse the district court and vacate its injunction. Intl Refugee Assistance Project v. Trump, Case No. 17-2231, Feb. 15, 201. 4th Cir. (Gregory) from DMD at Greenbelt (Chuang). Hashim M. Mooppan for Appellants/Cross-Appellees; Cecillia D. Wang for Appellee/Cross-Appellants. VLW No. 01-2-027, 25 pp.

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Title Annotation:International Refugee Assistance Project v. Trump
Author:Lightle, Rebecca
Publication:Virginia Lawyers Weekly
Date:Feb 27, 2018
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