Virginia District Judge Enjoins Trump's EO "Muslim Ban"

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The federal district judge in Aziz v. Trump, having previously granted the Motion of the State of Virginia to intervene, has granted a Preliminary Injunction against section 3(c) of the President's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." The judge's order is  supported by a 22 page Memorandum Opinion.  Recall that the Ninth Circuit has also recently ruled on the matter (refusing to stay a district judge's injunction); our general explainer of the issues is here.

Judge Leonie Brinkema rested her opinion on the Establishment Clause, finding a likelihood of success on the merits on that claim, and thus not reaching the Equal Protection Clause and Due Process Clause or statutory claims.

Judge Brinkema found that the case was justiciable and that Virginia as a state has standing to raise claims based on the injuries to its universities.  The judge rejected the contention that the President has unbridled power to issue the EO, stating that

Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights. It is a bedrock principle of this nation’s legal system that “the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution.” The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999).     Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.” Zadfldas v. Davis, 533 U.S. 678, 695 (2001).

 As to whether or not the EO is a "Muslim ban," the judge relied on public statements by the President and his senior advisors, noting that although the Government disputes the relevancy of the statements, the government does not contest their accuracy. Among the statements the Judge found relevant are candidate Trump's campaign statements and Rudolph Guiliani's January 29, 2017 interview on Fox News.

Judge Brinkema's analysis of the Establishment Clause issue relies heavily on McCreary County v. ACLU of Kentucky in which the Court found unconstitutional the display of the Ten Commandments in a courthouse based in large part of the motive of the state actors. The judge also rejected the argument that the EO could not be a "Muslim ban" because it did not ban all Muslims:

The argument has also been made that the Court cannot infer an anti-Muslim animus because the E0 does not affect all, or even most, Muslims. The major premise of that argument—that one can only demonstrate animus toward a group of people by targeting all of them at once—is flawed.      For example, it is highly unlikely that the Supreme Court considered the displays of the Ten Commandments erected by the Kentucky counties in McCreary, which had a localized impact, to be targeted at all persons outside the Judeo-Christian traditions. Moreover, the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution. [citations omitted]

Thus, the judge entered a preliminary injunction of 3(c) of the EO against Virginia residents or those affiliated with Virginia's education institutions.