Constitutional Law Prof Blog

Fourth Circuit En Banc Affirms Injunction Against Trump's Travel Ban 3.0

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

In its 285 page opinions in IRAP v. Trump, the Fourth Circuit en banc majority has found that the so-called Travel Ban 3.0,  Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, is essentially intended as a Muslim Ban and thus there is a likelihood of success on the merits of the First Amendment Establishment Clause challenge meriting a preliminary injunction. 

The majority is composed of nine judges, with four judges (including a Senior Judge) dissenting. Some judges in the majority also wrote concurring opinions that would also grant relief on the statutory claims.

Recall that in October, Maryland District Judge Theodore Chuang has issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion, shortly after Hawai'i District Judge Derrick Watson had issued a nationwide injunction based largely on statutory grounds, which the Ninth Circuit affirmed. 

Recall also that SCOTUS granted certiorari to the Ninth Circuit's opinion, adding the Establishment Clause issue to the questions to be considered.  Most likely this case will be added to the SCOTUS docket.

The majority opinion by Chief Judge Gregory, after setting out the litigation history and preliminary injunction standard, delves into the Establishment Clause issue. Chief Judge Gregory begins by finding both that there is standing and that the case is ripe.

On the merits, Chief Judge Gregory's opinion first considers whether the proffered reason for the government act is "facially legitimate and bona fide" under Kleindienst v. Mandel (1972). The court assumes without deciding that the reason is facially legitimate, but holds that it is not bona fide:

here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; 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 finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

The President’s own words—publicly stating a constitutionally impermissible reason for the Proclamation—distinguish this case from those in which courts have found that the Government had satisfied Mandel’s “bona fide” prong.

Chief Judge Gregory then found that the Travel Ban 3.0 failed the Lemon v. Kurtzman (1971) test which requires the government to show that its challenged action has a primary secular legislative purpose, and then, even if it does that its principal or primary effect neither advances nor inhibits religion and which does not foster ‘an excessive government entanglement with religion. Chief Judge Gregory's majority opinion concludes that Travel Ban 3.0 did not have a primary secular purpose but, like its previous incarnations, was motivated by anti-Muslim bias. Chief Judge Gregory noted the government's argument to disregard the President's pre-election statements was a difficult one to make, but stated it did not need to rely on any campaign statements "because the President’s inauguration did not herald a new day."

Among the incidents Chief Judge Gregory recounts is this one from November 28, 2017 (after the Travel Ban 3.0 September 24, 2017 Proclamation):

President Trump 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 three videos were originally tweeted by an extremist political party whose mission is to oppose “all alien and destructive politic or religious doctrines, including . . . Islam.” When asked about the three videos, President Trump’s deputy press secretary Raj Shah responded by saying 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.” The Government does not—and, indeed, cannot—dispute that the President made these statements.

 Thus, the question of how long a "taint" of impermissible motive should persist was acknowledged and then quickly dispatched: "President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims." Moreover, the government initially relied on the months-long agency review to remove the taint, but

chose not to make the review publicly available and so provided a reasonable observer no basis to rely on the review. Perhaps in recognition of this, at oral argument before us the Government expressly disavowed any claim that the review could save the Proclamation. Instead, the Government conceded that the Proclamation rises and falls on its own four corners.

For the majority, then,

The contradiction between what the Proclamation says—that it merely reflects the results of a religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s proffered purpose, and undermines the Government’s argument that its multi-agency review cured any earlier impermissible religious purpose.

Chief Judge Gregory's majority opinion summed up its reasoning:

Our constitutional system creates a strong presumption of legitimacy for presidential action and we 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. 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.”

Finally, on the scope of the injunction, the majority opinion arguably broadened it:

To the extent that the district court held that IRAP, HIAS, and similar organizations categorically lack a qualifying bona fide relationship with their clients, we conclude that this would be an abuse of discretion. We see no need to read more into the Supreme Court’s grant of a stay than what it held: that refugees with formal assurances do not categorically enjoy a bona fide relationship with a U.S. entity. Instead, IRAP, HIAS, and other organizations that work with refugees or take on clients are subject to the same requirements as all other entities under the Supreme Court’s bona fide relationship standard: a relationship that is “formal, documented, and formed in the ordinary course, rather than for the purpose” of evading the travel restrictions imposed by the Proclamation.

Nevertheless, the Fourth Circuit stayed its decision, in light of the Supreme Court’s order staying the district judge's injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought."

 

Seventh Circuit Applies Ministerial Exception to Hebrew Teacher at Jewish School

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled this week that the First Amendment's ministerial exception barred a Hebrew teacher's Americans with Disabilities Act claim against her employer, a Jewish school. The ruling is the first time the Seventh Circuit applied the ministerial exception.

The case, Grussgott v. Milwaukee Jewish Day School, arose when Grussgott, a Hebrew teacher at the school, suffered memory and cognitive issues as a result of medical treatment for her brain tumor. During a call from a parent, Grussgott couldn't remember an event, and the parent taunted her about her memory loss. Grussgott's husband, who happens to be a rabbi, sent an e-mail from Grussgott's work account criticizing the parent for being disrespectful. The school fired her, and she sued under the ADA, arguing that she was fired because of her cognitive issues resulting from the brain tumor.

The Seventh Circuit ruled that the ministerial exception applied and dismissed the case. Applying the "fact-intensive analysis" of Hosanna-Tabor, the court held that while Grussgott's title and the "substance reflected in that title" both tilted against applying the ministerial exception, Grussgott's use of the title and the religious functions she performed both tilted in favor. The court explained:

But Hebrew teachers at Milwaukee Jewish Day School were expected to follow the unified Tal Am curriculum, meaning that the school expected its Hebrew teachers to integrate religious teachings into their lessons. Grussgott's resume also touts significant religious teaching experience, which the former principal said was a crucial factor in the school hiring her in 2013. Thus, the substance of Grussgott's title as conveyed to her and as perceived by others entails the teaching of the Jewish religion to students, which supports the application of the ministerial exception here.

***

Grussgott undisputedly taught her students about Jewish holidays, prayer, and the weekly Torah readings; moreover, she practiced the religion alongside her students by praying with them and performing certain rituals, for example.

The court was careful to say that its analysis is holistic and fact-intensive, and not a rigid and mathematical application of the four "factors" from Hasanna-Tabor. On the other hand, the court also rejected "a purely functional approach to determining whether an employee's role is ministerial."

We read the Supreme Court's decision to impose, in essence, a totality-of-the-circumstances test. And it is fair to say that, under the totality of the circumstances in this particular case, the importance of Grussgott's role as a "teacher of [] faith" to the next generation outweighed other considerations.

Ninth Circuit Finds Presidential Travel Ban 3.0 Unlawful

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

In the latest installment in the continuing saga of President Trump's various efforts to promulgate a travel ban, often called a Muslim Ban, the Ninth Circuit opinion in Hawai'i v. Trump has largely affirmed the preliminary injunction issued by District Judge Derrick Watson enjoining the Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.

Recall that the United States Supreme Court, over the stated disagreement of Justices Ginsburg and Sotomayor, issued a stay of the district judge's opinion earlier this month, as well as a stay in the related proceedings in the Fourth Circuit in IRAP v. Trump. 

The unanimous Ninth Circuit panel does not disturb the status quo: "In light of the Supreme Court’s order staying this injunction pending 'disposition of the Government’s petition for a writ of certiorari, if such writ is sought,' we stay our decision today pending Supreme Court review."   The Ninth Circuit does, however, narrow the district judge's injunction, to "give relief only to those with a credible bona fide relationship with the United States."

On the merits, the Ninth Circuit does not reach the constitutional claims including the Establishment Clause, unlike the Fourth Circuit in IRAP v. Trump, because it finds that the plaintiffs' statutory claims are sufficient to grant relief.

Yet the complex statutory framework of the Immigration and Nationality Act, INA, does implicitly invoke the scope of executive powers.  In short, the Ninth Circuit finds that the Presidential Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas and therefore (in likelihood sufficient for the preliminary injunction) run afoul of 8 U.S.C. § 1152(a)(1)(A)’s prohibition on nationality-based discrimination. As the Ninth Circuit opinion observes:

the Proclamation functions as an executive override of broad swaths of immigration laws that Congress has used its considered judgment to enact. If the Proclamation is—as the Government contends—authorized under [8 U.S.C.] § 1182(f), then § 1182(f) upends the normal functioning of separation of powers. Even Congress is prohibited from enabling “unilateral Presidential action that either repeals or amends parts of duly enacted statutes.” Clinton v. City of New York, 524 U.S. 417, 439 (1998). This is true even when the executive actions respond to issues of “first importance,” issues that potentially place the country’s “Constitution and its survival in peril.” Id. at 449 (Kennedy, J., concurring). In addressing such critical issues, the political branches still do not “have a somewhat free hand to reallocate their own authority,” as the “Constitution’s structure requires a stability which transcends the convenience of the moment” and was crafted in recognition that “[c]oncentration of power in the hands of a single branch is a threat to liberty.” Id. at 449–50.

And the Proclamation’s sweeping assertion of authority is fundamentally legislative in nature. . . .

Recall that a few months ago, after granting certiorari in Hawai'i v. Trump, the United States Supreme Court instructed the Ninth Circuit to dismiss as moot the challenge to Travel Ban 2.0.  It looks as if the Court will now have its chance to consider version 3.o.

 

 

No Surprise: SCOTUS Vacates Trump v. Hawai'i Travel Ban Certiorari

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

In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:

We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.

This does not end litigation on the issues.

Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.  Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).

 

Fourth Circuit Finds 40 Foot Highway Cross Violates Establishment Clause

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

 The state of Maryland owns and maintains a 40 foot "Latin Cross" situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md.  Reversing the district judge, the Fourth Circuit concluded that the government cross violated the First Amendment's Establishment Clause in a divided opinion  in American Humanist Association v. Maryland-Capital Park and Planning Commission. 

The panel was unanimous in its conclusion that the challengers, both the association and individuals, had standing: The individuals, for example, alleged "specific unwelcome direct contact with the Cross; that is, they have each regularly encountered the Cross as residents while driving in the area, the Commission caused such injury by displaying the Cross, and the relief sought -- enjoining the display of the Cross -- would redress their injury."

The judges disagreed, however, regarding the application of the Establishment Clause.  In the well-reasoned majority opinion by Judge Thacker, the passive monument rule of the plurality in Van Orden v. Perry (2005) is not conclusive, especially given Justice Breyer's concurrence which stressed factors for determining whether or not the monument should be deemed passive and further stressed that the well-established Lemon test from Lemon v. Kurtzman (1971) remained a "useful guidepost."  The majority thus analyzed the case "pursuant to the three-prong test in Lemon with due consideration given to the factors outlined in Van Orden."

The court first found that there was a legitimate secular purpose to the cross, considering that it was erected to local soldiers who died in World War I. As to the effect of advancing or inhibiting religion prong, the court engaged in a detailed analysis of the symbol of the cross, and found it specifically Christian.  It rejected the argument that in Europe, the Latin Cross might be a neutral symbol for the war dead of World War I.  Further, the fact that this cross had been in place for 90 years was not determinative and the secular symbols accompanying the cross were also not sufficient:

the sectarian elements easily overwhelm the secular ones. The Cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection, standing four stories tall, and overshadowing the other monuments, the tallest of which is only ten feet tall and located approximately 200 feet from the Cross. The other monuments composing the Veterans Memorial Park are anywhere from 200 feet away to a half-mile away. The immense size and prominence of the Cross necessarily “evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones.”

 Thus, a "reasonable observer" - - - most likely viewing the 40 foot cross from the highway - - - would fairly understand the Cross to have the primary effect of endorsing religion. This is even true, the court reasoned, if the reasonable observer knew the history of the cross as memoralizing the war dead, because then this reasonable observer would also know that the original private organizers of the cross monument pledged "devotion to faith in God, and that same observer knows that Christian-only religious activities have taken place at the Cross.

On the third "excessive entanglement" prong of Lemon, the court found that additionally

displaying the Cross, particularly given its size, history, and context, amounts to excessive entanglement because the Commission is displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets. The display aggrandizes the Latin cross in a manner that says to any reasonable observer that the Commission either places Christianity above other faiths, views being American and Christian as one in the same, or both.

Dissenting, Chief Judge Gregory argued that

the majority misapplies Lemon and Van Orden to the extent that it subordinates the Memorial’s secular history and elements while focusing on the obvious religious nature of Latin crosses themselves; constructs a reasonable observer who ignores certain elements of the Memorial and reaches unreasonable conclusions; and confuses maintenance of a highway median and monument in a state park with excessive religious entanglement.

For the dissenting judge, the large size of the cross is only one factor that a reasonable observer would notice and the majority's opinion would lead to a rule that all "large crosses are unconstitutional despite any amount of secular history and context" if the the crosses were on government land.

Given the continuing and renewed debates about the entwinement of Christianity and government, this may be a plausible candidate for certiorari to the United States Supreme Court.  

[image from the opinion's appendix].

Second Federal District Judge Issues Preliminary Injunction on Muslim Ban 3.0

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

 A few hours after Hawai'i District Judge Derrick Watson granted a nationwide preliminary injunction in Hawai'i v. Trump in an extensive order based largely on statutory grounds, Maryland District Judge Theodore Chuang has also issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion  in International Refugee Assistance Project (IRAP) v. Trump. 

Recall that Judge Chuang had issued an injunction against the enforcement of Muslim Ban 2.0, which the en banc Fourth Circuit had affirmed finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order. The United States Supreme Court, having granted certiorari to the case (as well as Hawai'i v. Trump), had recently vacated the Fourth Circuit opinion given the Government's suspension of version 2.0 of the "Muslim Ban" (President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), with Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, known colloquially as "Muslim Ban" or "Travel Ban" or EO "3.0."

In short, although there are some differences in this third iteration, including the addition of nationals from the countries of Chad, North Korea, and Venezuela, as well as Iran, Libya, Somalia, Syria, Yemen, Judge Chuang concluded that "Muslim Ban 3.0" suffered from the same constitutional infirmities as the previous bans.

Judge Chuang found that the Plaintiffs had standing and that parts on the Proclamation conflicted with the Immigration and Nationality Act, similar to the conclusions of Judge Watson in Hawai'i v. Trump. However, because the statutory claims were not sufficient to enjoin the challenge to nonimmigrantion visas, Judge Chuang proceeded to the constitutional claims.

On the Establishment Clause challenge, Judge Chuang ultimately concluded that the Plaintiffs had a likelihood of prevailing on the merits.  The central question, as it had been previously, is the extent to which the President's motivation is a "Muslim Ban" and thus comes within the First Amendment's prohibition as most exemplified by McCreary County. v. ACLU of Kentucky (2005) and the first prong of the well-established test from Lemon v. Kurtzman (1971), essentially requiring a government act to have a secular purpose.  Given that courts had previously held that the two previous iterations of the travel ban were motivated by anti-Muslim sentiment, Judge Chuang considered whether this new Proclamation was still tainted by that motivation or if it had been replaced by nuetral considerations such as national security.  The "taint" does not persist forever, but neither should courts be "absentminded" as to the context.

Judge Chuang wrote:

Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” — announced his intention to go back to and get even tougher than in EO-1 and EO-2. Notably, the June 5 tweet calling for a “much tougher version” reveals that even before President Trump had received any reports on the DHS Review that ostensibly identified the need for a travel ban, the first of which he received over a month later on July 9, 2017, the President had already decided that the travel ban would continue. His September 15, 2017 tweet calling for a “far larger, tougher” travel ban, issued the same day that that the final report was received, reinforced this position. . . . [The President's] statements

Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated.”  Rather, they cast the Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban, and, in echoes of McCreary, convey the message that the third iteration of the ban—no longer temporary—will be the “enhanced expression” of the earlier ones.

[citations omitted].  Thus, Judge Chuang concluded that

where the Proclamation itself is not sufficiently independent of EO-2 to signal a purposeful, persuasive change in the primary purpose of the travel ban, and there were no other public signs that “as persuasively” as the original violation established a different primary purpose for the travel ban, it cannot find that a “reasonable observer” would understand that the primary purpose of the Proclamation’s travel ban is no longer the desire to impose a Muslim ban.

Having concluded that the Plaintiffs would likely prevail on the merits of the First Amendment claim, Judge Chuang did not discuss the Equal Protection challenge.

Judge Chuang issued an Order enjoining enforcement of section 2 of the Proclamation.

Like the injunction issued in Hawai'i v. Trump, this is sure to be appealed by the Trump Administration.

 

SCOTUS Vacates Fourth Circuit Opinion in Muslim Ban 2.0

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

 The United States Supreme Court issued an Order in Trump v. International Refugee Assistance Project (IRAP) bring the case to a close:

We granted certiorari in this case to resolve a challenge to“the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

Recall that the en banc Fourth Circuit concluded that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order. The main opinion was authored by Chief Judge Roger Gregory with six other judges joining in full.  The case had proceeded directly to en banc from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction .

Most likely, a similar order disposing on Hawai'i v. Trump will follow.

However, the new "travel ban" - - - the third attempt by the Trump Administration - - - has already been challenged.

 

 

ACLU Sues to Halt Trump Administration Roll-Back of ACA's Contraception Benefits

The ACLU filed suit yesterday in the Northern District of California challenging the Trump Administration's roll-back of the contraception benefit under the Affordable Care Act. The lawsuit seeks declaratory and injunctive relief.

The lawsuit also illustrates the new approach to religion under this administration as stated yesterday in AG Sessions's principles of religious liberty.

The suit, which also includes SEIU-UHW as a plaintiff, argues that the roll-back in HHS's interim final regulations would permit religiously affiliated organizations that currently get an exemption from the contraception-coverage requirement to back out of the requirement altogether. (The exemption permits religiously affiliated organizations to pass the implementation off to their insurer or third-party administrator, so that the organization itself doesn't have anything to do with contraception, but so that employees and students of the organization still get direct and free access through the insurer or third-party administrator. The interim final rules would permit those organizations to deny contraception coverage entirely.)

The complaint argues that the move violates the Establishment Clause, equal protection, the Administrative Procedure Act, and the ACA itself:

By authorizing businesses, non-profit organizations, and universities to impose their religious beliefs on their employees and students, and rob women of health coverage that is otherwise guaranteed by law, the Religious Exemption [interim final rule] violates the Establishment Clause. Furthermore, by authorizing employers to block contraception coverage based on religious or other grounds, both [interim final rules] violate the right to equal protection guaranteed by the Fifth Amendment to the U.S. Constitution. Moreover, because the [interim final rules] were promulgated without good cause for foregoing notice and comment and without providing a reasoned basis for the change in agency position as required by the Administrative Procedure Act, they violate federal statutory requirements that agencies not act in an arbitrary and capricious manner and observe procedures required by law. Finally, the [interim final rules] exceed the statutory authority given to the agencies by the Affordable Care Act.

As to the Establishment Clause, the complaint argues that the purpose and effect of the interim final rules were to advance religion, and that they foster an excessive government entanglement with religion.

It's no coincidence that the interim final rules came out the same day as AG Sessions's principles on religious liberty.

But note that while the ACLU complaint speaks in terms of the Lemon test (purpose, effect, entanglement), AG Sessions's principles don't mention the case. The principles instead discuss the Establishment Clause barely (privileging free exercise) and only in terms of "establishing a religion and coercing Americans to follow it," "restrict[ing] government from interfering [in religion]," "prohibit[ing] government from officially favoring or disfavoring particular religious groups," and "neutrality towards religion."

In other words, AG Sessions's principles back off the Establishment Clause concerns about religious purpose and effect, and even excessive entanglement, and instead emphasize only more blunt forms of government establishment of religion (and downplay even those, in favor of free exercise concerns). It's thus hardly a surprise that HHS would issue these interim final rules, even with a religious purpose and effect: they fall squarely within AG Sessions's free exercise interpretation, and do not violate his (lesser important) establishment interpretation.

In yet other words, these interim regs are just a preview of what's to come under the Sessions approach to religion.

SCOTUS Grants Certiorari in "Travel Ban" Cases and Grants Partial Stay

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

 In a per curiam opinion in the so-called "travel ban" or "Muslim ban" cases, Trump v. International Refugee Assistance Project and Trump v. Hawai'i, the Court has granted the federal government's petitions for certiorari and granted the stay applications in part.  The Fourth Circuit en banc and the Ninth Circuit had both found that the challengers to the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), known as EO-2.

Recall that the Fourth Circuit en banc in Trump v. International Refugee Assistance Project affirmed the injunction against EO-2 based on the Establishment Clause.  As the Supreme Court's opinion phrases it, the Fourth Circuit

majority concluded that the primary purpose of §2(c) was religious, in violation of the First Amendment: A reasonable observer familiar with all the circumstances—including the predominantly Muslim character of the designated countries and statements made by President Trump during his Presidential campaign—would conclude that §2(c) was motivated principally by a desire to exclude Muslims from the United States, not by considerations relating to national security. Having reached this conclusion, the court upheld the preliminary injunction prohibiting enforcement of §2(c) [of EO-2] against any foreign national seeking to enter this country.

 Recall also that the Ninth Circuit unanimous panel similarly affirmed a district judge's injunction against EO-2, but on the grounds that EO-2 likely exceeded the president's statutory authority, thus only implicitly reaching the constitutional issue.

In today's opinion from the Court, the Court granted the petitions for certiorari in both cases, consolidated the cases, and set them for the October 2017 Term, as well as directing briefing on the issues of mootness.

Importantly, the Court narrowed the injunctive relief imposed by the appellate courts.  As to §2(c) of EO-2, which suspended entry in the United States, the Court found the injunction balanced the equities incorrectly as to "foreign nationals abroad who have no connection to the United States at all."  Thus, "§2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2."

Similarly, as to §6(b) refugee cap enjoined by the Ninth Circuit, the Court found that refugees who lack connection to the United States should not be covered.  However, EO §6 "may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship" with the United States.

In discussing §2(c), the Court provided examples of the narrowed injunction:

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relation- ship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admit- ted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship sim- ply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

The Court's decision may give both "sides" a basis for claiming victory, but of course the decision is a temporary one and awaits a full decision on the merits.

 

SCOTUS in Trinity Lutheran Finds Missouri's Denial of Funding to Church Playground Violates First Amendment

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

 In its opinion in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision, a so-called Blaine Amendment, prohibiting any state funds from being awarded to religious organizations. 

Recall that at the oral arguments, most Justices seemed skeptical of Missouri's argument.  However, recall that the Eighth Circuit had concluded that Trinity Church sought an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church."  The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology."  For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.  

Church Interior, Missouri, image via

In the Trinity Lutheran opinion authored by Chief Justice Roberts, the Court characterized the Missouri policy as one that "expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character."  Relying on the Free Exercise precedent it had discussed, it concluded that if such cases "make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny."  The Court added that "Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government program without disavowing its religious character."

Yet the question of subsidy or funding caused some consternation amongst the Justices who joined the Chief Justice's opinion for the Court.  Footnote 3, which provides in full "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination" is joined only by a plurality - - - Justices Thomas and Gorsuch explicitly exempted this footnote.  In two brief concurring opinions, one by Thomas joined by Gorsuch and one by Gorsuch joined by Thomas, the continued vitality of Locke v. Davey is questioned.

In the Court's opinion, Locke v. Davey is distinguished because "Davey was not denied a state-funded scholarship of who he was but because of what he proposed to do - to use the funds to prepare for the ministry." (emphasis in original).  For Gorsuch, this status-use distinction is not sufficient.

Justice Sotomayor's dissenting opinion, joined by Justice Ginsburg, and almost twice as long as the Chief Justice's opinion for the Court, is rich with originalist history as well a discussion of Locke v. Davey and a citation to the 38 state constitutional provisions similar to the Missouri one.  For Sotomayor,

Missouri has recognized the simple truth that, even absent an Establishment Clause violation, the transfer of public funds to houses of worship raises concerns that sit exactly between the Religion Clauses. To avoid those concerns, and only those concerns, it has prohibited such funding. In doing so, it made the same choice made by the earliest States centuries ago and many other States in the years since. The Constitution permits this choice.

Sotomayor points to the possible ramifications of the opinion, including the troublesome footnote 3:

The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others, see ante at 14, n. 3—it must do so whenever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. I dissent.

It dies seem that Trinity Lutheran opens the floodgates for claims by religious entities that they are being "discriminated" against whenever there are secular provisions for funding.

Tenth Circuit Says Any Actual Injury Will Do in Establishment Clause Case

The Tenth Circuit ruled this week that the mother of a school child had standing to challenge under the Establishment Clause the school's fundraising and support for a religious mission trip, even though the child received just one e-mail and one flyer from school officials soliciting donations for the trip.

The ruling reversed a district court order dismissing the case on the ground that the child's exposure to unconstitutional activities at the school lacked "a degree of constancy or conspicuousness."

The case arose after public school officials sought donated or a school-sponsored, religious mission trip to Guatemala. Families enrolled in the district and the American Humanist Association filed suit, seeking nominal monetary damages and declaratory and injunctive relief. The district court dismissed all the claims, ruling that the plaintiffs failed to show sufficient harm and that they lacked standing as taxpayers. As to plaintiff Jane Zoe, the district court held that the harm--one e-mail soliciting donations and one flyer from school employees soliciting donations--wasn't pervasive enough to satisfy standing requirements.

The Tenth Circuit reversed as to Zoe. The court held that under well-settled Supreme Court and circuit precedent, any harm, even nominal harm, will do to establish standing, and that a plaintiff need not show any particular level of heightened pervasiveness or degree of harm.

But the court denied injunctive relief to Zoe, holding that "the record does not suggest that Zoe is likely to receive similar fundraising solicitations in the future." The court also held that the other individual plaintiffs lacked standing, because they couldn't show that they'd been exposed (like Zoe had).

The ruling sends the case back to the district court for consideration of the merits.

Fourth Circuit En Banc Upholds Injunction Against President's "Travel Ban"

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

In its opinion in International Refugee Assistance Project (IRAP)  v. Trump, heard by the en banc court without an intervening panel decision, the court affirmed in almost every respect Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."  The court heard oral argument on May 8. 

The court's opinion finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order was authored by Chief Judge Roger Gregory with six other judges joining in full in the almost 80 page opinion.  Additional opinions bring the total opinion pages to over 200: three other judges concurred in separate opinions;  Three judges dissented in separate opinions (with the dissenters joining each of the dissenting opinions). Recall that two other judges recused. 

On the merits of the Establishment Clause claim as applied to an Executive Order involving immigration, Judge Gregory's opinion for the court agreed with the United States that the deferential standard in Kleindienst v. Mandel (1972) is the appropriate starting point but disagreed with the government that it ended the inquiry.  Instead, "Mandel's requirement that an immigration action be 'bona fide' may in some instances compel more searching judicial review."  The court found that while the national security interest was facially legitimate, the plaintiffs made a requisite showing that it was provided in "bad faith."

Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1. [citations to record omitted].  Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.

Having cleared the hurdle of Mandel, the court then considered the application of the Establishment Clause test articulated in Lemon v. Kurtzman, noting that "in the context of this case, there is an obvious symmetry between Mandel's "bona fide" prong and the constitutional inquiry establishment in Lemon. Both tests ask courts to evaluate the government's purpose for acting."

Thus, Judge Gregory's opinion analyzed some of the same material regarding the EO's bona fide quality to determine whether the EO had a primary secular government purpose as required under Lemon's first prong.  But the analysis the court conducted under Lemon was much more detailed.  The court relied upon McCreary County v. ACLU of Kentucky (2005), in which the United States Supreme Court concluded that a judge's initial removal of his posting of the Ten Commandments in the courthouse was not cured by his subsequent posting of the biblical text surrounded by other texts.  In McCreary, the Court articulated the correct viewpoint as the "reasonable objective observer" who should take into account the traditional external signs but should not perform judicial psychoanalysis. 

It is this portion of the opinion (Part IVA2; pages 54-70 in text) regarding the purpose of EO-2 that is central.  The court finds there is a "compelling case" that EO-2's "primary purpose is religious."  It begins by discussing the candidate's campaign statements, later rejecting the argument that these statements should be subject to a "bright-line rule" that they should not be considered.  Instead, the court states that the "campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action." 

Just as the reasonable observer’s “world is not made brand new every morning,” McCreary,  nor are we able to awake without the vivid memory of these statements. We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174 (Chiswick Press ed., 1892). If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review.

Moreover, the court considered the by now familiar statements by spokespeople: advisor and former mayor Rudolph Guiliani on EO-1; Senior Policy Advisor Miller and White House Press Secretary Spicer on EO-2.  The court further found that the government's argument that EO-2's primary purpose was national security rather than religious

is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, J.A. 397, and that those agencies only offered a national security rationale after EO-1 was enjoined. Furthermore, internal reports from DHS contradict this national security rationale, with one report stating that “most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.” According to former National Security Officials, Section 2(c) serves “no legitimate national security purpose,” given that “not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years” and that there is no evidence of any new security risks emanating from these countries. Corrected Brief for Former National Security Officials as Amici Curiae Supporting Appellees 5–8, ECF No. 126-1. Like the district court, we think this strong evidence that any national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a “litigating position” than as the actual purpose of EO-2. See McCreary, 545 U.S. at 871 (describing the government’s “new statements of purpose . . . as a litigating position” where they were offered to explain the third iteration of a previously enjoined religious display). And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.

In short, the court found that EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it," and thus EO-2 "likely fails Lemon's purpose prong" and is unconstitutional under the Establishment Clause.

The court affirmed the preliminary injunction as appropriately nationwide, but did agree with the government that the injunction should not be issued "against the President himself."  Thus, the injunction was lifted in that regard, although the court noted that while the President was not directly bound, the court assumes "it is substantially likely" that the President would abide by the the court's authoritative interpretation of section 2 of EO-2.

Recall that a Ninth Circuit panel is also considering the constitutionality of EO-2; it heard oral arguments on May 15 in Hawai'i v. Trump.

Ninth Circuit Oral Arguments in Hawai'i v. Trump

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

A panel of the Ninth Circuit - - - Judge Ronald Gould, Judge Richard Paez, and Senior Judge Michael Hawkins - - - heard oral arguments in Hawai'i v. Trump, the appeal from the preliminary injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0").

Arguing for the DOJ in favor of the United States was Acting Solicitor General Jeffrey Wall, who also argued the same position a week ago in the Fourth Circuit en banc argument in Trump v. International Refugee Assistance Project (IRAP).  Indeed, there were specific references in the Ninth Circuit argument to that argument with regard to the scope of the injunction in Hawai'i v. Trump.  The argument spent a fair amount of time on the statutory claims, which were a basis of Maryland District Judge Theodore Chuang's injunction on appeal to the Fourth Circuit, but were not the basis of the injunction by Hawai'i District Judge Derrick Watson, who ruled on the basis of the Establishment Clause.  The issue of standing also peppered the arguments.  Wall's argument in the Ninth Circuit seemed less emphatic about the "presumption of regularity" entitled to the President than the argument last week, perhaps because of intervening events. Wall certainly did, however, hammer the Government's point that the deferential standard of Kleindienst v. Mandel (1972) should apply.  And although it was not specifically referenced, the dissent from en banc review in a Ninth Circuit precursor case, Washington v. Trump, which largely rested on Mandel, implicitly shaped the arguments.

For his part, arguing for Hawai'i, Neal Katyal, formerly with the Department of Justice, stressed that the Ninth Circuit's panel opinion in Washington v. Trump should be the model.  Katyal argued that the EO was unprecedented.

The video of the argument is worth watching, not only for its explication of the issues, but also as examples of excellent appellate advocacy.

 

However, there was a quite odd interchange regarding Neal Katyal's previous litigation stances.  At around 52:03 in the video above, Senior Judge Hawkins said to Katyal, "You have argued in the past to give deference to the Executive in immigration matters." After Katyal's acknowledgement, Judge Hawkins refers to an amicus brief in United States v. Texas and reads a passage.  The brief to which Hawkins seems to have been referring is Brief of Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae In Support Of Petitioners and the portions seem to be from page 12 of the brief, supporting the Congressional grant of wide authority to make decisions regarding deferred action in immigration deportations.  After Katyal's response, Judge Hawkins made a second reference: "You also wrote a brief in Flores-Villar."  The brief to which Hawkins refers is Katyal's brief as Acting Solicitor General for the Respondent United States in Flores-Villar v. United States, involving a mother-father differential for unwed parents.  Judge Hawkins reads the following passage without the case references or citations:

[T]he United States’ “policy toward aliens” is “vitally and intricately interwoven with * * * the conduct of foreign relations,” a power that likewise is vested in the political Branches. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). “Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).

Katyal responds that when he was with the United States Government he tried to convince the United States Supreme Court of this, but the Court "did not bite."  Recall that Flores-Villar was a 4-4 affirmance of the Ninth Circuit.

Certainly, both United States v. Texas, which has usually surfaced in the context of a state's standing, and Flores-Villar are somewhat pertinent immigration cases involving the scope of judicial deference.  Nevertheless, specific references to an individual attorney's briefs does seem unusual.

 

Fourth Circuit En Banc Hears Appeal from Injunction Against "Muslim Ban 2.0"

The Fourth Circuit en banc heard almost two hours of intense oral arguments in Trump v. International Refugee Assistance Project (IRAP) from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."  

The court of 13 Judges (there were recusals from Harvey Wilkinson III whose son-in-law is Jeffrey Wall, Acting Solicitor General arguing for the United States, and Allison Duncan), were very active and asked the questions which are by now familiar, including standing, the constitutional "choice" between Executive power in immigration and Establishment Clause doctrine, and the statutory under Immigration and Nationality Act.  (We discuss these issues and Judge Chuang's ruling here).  The opening question, however - - - before Wall even had a chance to introduce himself - - - concerned the scope of Judge Chuang's injunction.

In its most basic terms, Wall defended the President's Executive Order by repeating that once the President takes the oath of office, his actions are entitled to a "presumption of regularity," thus the judiciary should not inquire further regarding any motive.  Representing the plaintiffs, ACLU attorney Omar C. Jadwat was pressed on how the court should look beyond the four corners of the EO and how long any taint from animus should last. 

The oral argument is available on C-SPAN, with an official transcript from the court forthcoming.

 

Next Monday, a panel of the Ninth Circuit will hear the appeal in Hawai'i v. Trump.

 

Is There Even Enough in Trump's Religion-Protection EO to Sue Over?

Steven D. Schwinn, John Marshall Law School

President Trump issued his long-awaited and much promoted executive order on protecting religious liberties today. Most say that when the rubber hits the road, the EO does, well, nothing at all, except maybe telegraph the President's feelings about the importance of protecting religious liberties. Even the ACLU, earlier geared up to sue, backed down when they read the actual language.

So: Is the ACLU right? Is there even enough in Trump's EO to sue over?

Probably not. Consider it, section by section:

Section 1 states that "[i]t shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom" and that "[t]he executive branch will honor and enforce those protections." At most this language states the administration's enforcement priorities for law that already exists.

Section 2 takes aim at the Johnson Amendment--that portion of IRC 501(c)(3) that bans nonprofits from directly or indirectly engaging in electioneering on behalf of, or in opposition to, any candidate for elective public office. (Nonprofits can engage in ordinary political speech; they do it all time. They just can't endorse candidates.) But the language of Section 2 does no such thing. It says, "the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury." (Emphasis added.) In other words, the plain terms of Section 2 don't take down the Johnson Amendment (even if they could); instead, they comply with it.

Section 3 directs the relevant secretaries to "consider issuing amended regulations" to overturn the contraception mandate regs. Folks may agree or disagree over the wisdom of the contraception mandate, but there's nothing objectionable with a president asking an agency to "consider issuing amended regulations." And even if there were, the "consider" means that anyone challenging this portion of the EO could face an uphill battle to show standing.

The balance of the EO is just dressing.

In other words, the EO really doesn't do anything that one might sue over--at least yet. Even Section 2--the portion perhaps most likely to be challenged on Establishment Clause, Equal Protection, free speech, and "take care" grounds (and in fact challenged on exactly those grounds in a suit filed by the Freedom From Religion Foundation)--actually says that the administration will comply with the Johnson Amendment.

The Freedom From Religion Foundation wisely quotes President Trump throughout its complaint, arguing that the EO must be interpreted in light of his public statements (and thus drawing on this same (successful) strategy in other cases challenging the travel ban and the sanctuary cities EO).

But unlike those other EOs, the plain text of this one seems to do nothing--at least not yet.

Hawai'i District Judge Extends Injunction Against Muslim Travel Ban 2.0

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

In an opinion and order in Hawai'i v. Trump, United States District Judge Derrick Watson has granted the motion to convert the previously issued Temporary Restraining Order  against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0") into a Preliminary Injunction.  This has the effect of extending the time frame of the injunction as well as making appeal likely.

Judge Watson incorporated the rationales as stated in the previous TRO as we previously discussed, but elaborated on several matters.  First, Judge Watson again considered the standing issues and again concluded that both the state of Hawai'i and the individual plaintiff, Dr. Ismail Elshikh, had standing.

On the likelihood of success on the merits, Judge Watson again set out the classic Establishment Clause test articulated in Lemon v. Kurtzman (1971) and again concluded that the first prong requiring the government action to have a primary secular purpose was not met.

Judge Watson declared that "As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination" (emphasis in original).

Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order. According to the Government, the Court must afford the President deference in the national security context and should not “‘look behind the exercise of [the President’s] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Govt. Mem. in Opp’n to Mot. for TRO 42–43 (quoting Kliendienst v. Mandel, 408 U.S. 753, 770 (1972)), ECF No. 145. No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door. In fact, every court that has considered whether to apply the Establishment Clause to either the Executive Order or its predecessor (regardless of the ultimate outcome) has done so.

(emphasis in original).  The footnote to this passage includes citations to the recently decided Sarsour v. Trump (Virginia District Judge upholds EO 2) and Int’l Refugee Assistance Project (IRAP) v. Trump  (Maryland District Judge enjoins part of EO 2). Judge Watson adds

The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.

While future Executive action could cure the defects, the attempt by this second EO to merely sanitize the first EO was not sufficient. 

Judge Watson declined to narrow the TRO's scope and the injunction is a nationwide one including sections 2 and 6. The judge stated he was

cognizant of the difficult position in which this ruling might place government employees performing what the Federal Defendants refer to as “inward-facing” tasks of the Executive Order.
Any confusion, however, is due in part to the Government’s failure to provide a workable framework for narrowing the scope of the enjoined conduct by specifically identifying those portions of the Executive Order that are in conflict with what it merely argues are “internal governmental communications and activities, most if not all of which could take place in the absence of the Executive Order but the status of which is now, at the very least, unclear in view of the current TRO.” Mem. in Opp’n 29. The Court simply cannot discern, on the present record, a method for determining which enjoined provisions of the Executive Order are causing the alleged confusion asserted by the Government. 

In other words, the federal government cannot complain about the injunction's breadth if the government does not take steps necessary to narrow it. Quoting the Ninth Circuit panel on the original EO in Washington v. Trump, Judge Watson stated that "even if the [preliminary injunction] might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.”

Judge Watson's order and opinion set the stage for the case to be appealed to the Ninth Circuit, even as IRAP v. Trump is beginning to proceed in the Fourth Circuit.

Virginia District Judge Upholds Muslim Travel Ban 2.0

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

In his opinion in Sarsour v. Trump, United States District Judge for the Eastern District of Virginia Anthony Trenga denied the Plaintiffs' motion for Temporary Restraining Order or Preliminary Injunction.

At issue is the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." 

Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," was enjoined by the Ninth Circuit in Washington v. Trump,; our backgrounder on the issues is here.  The President withdrew the initial EO and the Ninth Circuit denied the sua sponte motion for en banc review, but in a somewhat unusual step there was a substantive dissenting opinion authored by Judge Jay Bybee.

Recall also that regarding the March 6, 2017 EO ("Muslim Travel Ban 2.0"), two other federal district judges issued injunctions before the EO became effective.  In Hawai'i v. Trump, United States District Judge Derrick Watson issued a TRO of sections 2 and 6 of the EO based on the likelihood of plaintiffs to prevail on their Establishment Clause challenge.  In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a preliminary injunction of section 2(e) of the EO based on the likelihood of plaintiffs to prevail on their statutory claim under the Immigration and Nationality Act and their constitutional claim under the Establishment Clause.Judge Trenga disagrees with both Hawai'i v. Trump and IRAP v. Trump, although the opinion does not engage in a substantial dialogue with these opinions. 

Linda Sarsour, plaintiff via

For example, on the statutory claim in Sarsour v. Trump, Judge Trenga concludes after reviewing "the text and structure of the INA as a whole, and specifically, the practical, operational relationships" of the provisions, that the nondiscrimination restrictions of §1152 do not "apply to the issuance or denial of non-immigrant visas or entry under §1182(f).  In a footnote, Judge Trenga acknowledges that the judge in IRAP v. Trump "attempted to reconcile these seemingly contradictory provisions," and simply adds, "There, the court concluded that Section 1152 bars the President from discriminating on the basis of nationality in the issuance of immigrant visas only." (footnote 12).  Judge Trenga characterized the Immigration and Nationality Act (INA) as a "legislative rabbit warren that is not easily navigated," but his ultimate conclusion seems to be based on a broad view of Executive authority. Judge Trenga writes that the he "also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a)."

Similarly, on the Establishment Clause claim Judge Trenga accorded the Executive broad deference.  Unlike the judges in both Hawai'i v. Trump and IRAP v. Trump, Judge Trenga found that the facial neutrality of "EO-2" was determinative.  Judge Trenga held that past statements - - - or the EO-2 statements (described in a footnote as including the President's statement that EO-2 was a "watered-down version" of EO-1, and Presidential Advisor Stephen Miller's statements) - - - have not "effectively disqualified him from exercising his lawful presidential authority":

In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose. To proceed otherwise would thrust this Court into the realm of “‘look[ing] behind’ the president’s national security judgments . . . result[ing] in a trial de novo of the president’s national security determinations,” Aziz, 2017 WL 580855, at *8, and would require “a psychoanalysis of a drafter’s heart of hearts,” all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.

Likewise, on the Equal Protection claim, Judge Trenga concluded that although the EO would have a differential impact on Muslims, it was facially neutral.  The Judge relied on an earlier Fourth Circuit case, Rajah v. Mukasy (2008) and articulated the standard as requiring merely a rational national security basis for an immigration measure to survive an Equal Protection Clause challenge.  And again, Judge Trenga accorded the Executive wide discretion: "These are judgments committed to the political branches - - - not to the courts."

In sum, Judge Trenga's opinion aligns with the Ninth Circuit dissent from en banc review by Judge Bybee and is in opposition to the other district judges who have rendered opinions on the second EO which have enjoined its enforcement.  

Maryland Federal District Judge Issues Injunction Against Muslim Travel Ban 2.0

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

In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."   The 43 page opinion concludes that the Plaintiffs have a likelihood of success on their claims that the EO violates the Immigration and Nationality Act and violates the Establishment Clause.  [Note: Judge Chuang construed the motion for TRO/PI as a motion for a preliminary injunction and issued an injunction.] It closely follows on the TRO issued in Hawai'i v. Trump. 

On the issue of standing, Judge Chuang first finds that several of the individual plaintiffs have standing to challenge the EO on statutory grounds, meeting both Article III standing and being within the zone of interests of the statute.  Likewise, several plaintiffs have standing to challenge on the EO on Establishment Clause grounds given their personal injury on having family members who are directly and adversely affected by the ban.

Judge Chuang's opinion devotes substantial attention to the Immigration and Nationality Act claim, which has been raised in most of the complaints challenging this EO and its predecessor, but has not been the basis for a judicial restraining order.  Here, Judge Chuang concludes that the general power given to the President by 8 U.S.C. §1182(f) to "suspend the entry of all aliens or any class of aliens" is not exempt from the provision of 8 U.S.C. §1152(a) which bars discrimination in the issuance of immigrant visas.  Importantly, the exceptions listed in the non-discrimination provision of §1152(a) do not include §1182(f): 

Because the enumerated exceptions illustrate that Congress “knows how to expand ‘the jurisdictional reach of a statute,793 the absence of any reference to § 1182(1) among these exceptions provides strong evidence that Congress did not intend for §1182(1) to be exempt from the anti-discrimination provision of §1152(a).

[citation omitted].  Thus, Judge Chuang held that the plaintiffs have a likelihood to succeed on their statutory claim.

On the Establishments Clause claim, Judge Chuang, like other judges, looked to McCreary County v. ACLU of Kentucky (2005), for an interpretation of the first prong of the Lemon test, Lemon v. Kurtzman (1971), requiring an government act to have a secular purpose in order to be constitutional. Noting that finding of purpose is a common task for the courts, Judge Chuang discussed the specific statements in the record "directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims."  These statements included the by now familiar statements of candidate Trump and of former-Mayor Guiliani relating to the first EO.  Additionally, Judge Chuang found that the despite the changes in the second EO, "the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban," quoting statements by Senior Policy Advisor to the President Stephen Miller and White House Press Secretary Sean Spicer.

Judge Chuang rejected the Government's argument that such statements should not be considered because they were made outside the formal government decision-making process. Instead, "all of the public statements at issue here are fairly attributable to President Trump."

Moreover, Judge Huang also looked to the language of the second EO itself.  He rejected the Government's argument that the second EO's articulation of a national security purpose essentially saves the EO.  However, while there should ordinarily be deference to national security, Judge Chuang found that in this "highly unique case," the record provides "strong indications that the national security interest is not the primary purpose of the EO.

• First, the initial EO was adopted without interagency review: "The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale."
• Second, the national security rationale was offered only after courts issued injunctions against the first EO, similar to litigation in McCreary.
• Third, the EO is an "unprecedented response" to security risks without any triggering event.

Judge Chuang also rejected the Government's argument that deference is warranted.  This deference argument was made in a dissenting opinion by Judge Jay Bybee from the Ninth Circuit's denial of en banc review in Washington v. Trump.  For Judge Chuang, the deferential standard of Kleindienst v. Mandel (1972), is most "typically applied when a court is asked to review an executive officer's decision to deny a visa" as in Kerry v. Din (2015). The Mandel test does not apply to the promulgation of sweeping immigration policy. Instead, even when exercising their immigration powers, the political branches must choose constitutional permissible means of implementing that power.  It is the courts' duty to determine those constitutional boundaries.

Thus, Judge Chuang issued a nationwide injunction against §2(c) of the Executive Order, independent of the injunction earlier that same day of §2, as well as §6, in Hawaii v. Trump.

[image: Photo by Bruce Emmerling of protest of first EO outside courthouse in Baltimore via; note that Judge Chuang does not sit in Baltimore].

 

Hawai'i District Judge Issues TRO Against Muslim Travel Ban 2.0

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

United States District Judge Derrick Watson has issued a Temporary Restraining Order in Hawai'i v. Trump against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."  Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.  Recall also that Judge Watson allowed Hawai'i to amend its original complaint challenging the previous EO. 

Judge Watson's more than 40 page opinion first engages in an explanation of the facts giving rise to the litigation.

Next, Judge Watson concludes there is Article III standing.  He finds that Hawai'i has standing based on its proprietary interests (and thus there was no need to reach the parens patriae standing theory).  The first proprietary interest is the state's financial and intangible interests in its universities, very similar to the interests the Ninth Circuit found sufficient in Washington v. Trump, involving the previous EO.  The second proprietary interest was to the state's "main economic driver: tourism."  Additionally, Judge Watson concludes that Dr. Elshikh, added as a plaintiff in the amended complaint has standing, specifically addressing the Establishment Clause claim in which injury can be "particularly elusive." Moreover, his claim is ripe.

As to the likelihood of success on the merits prong of the TRO requirement, Judge Watson concluded that the plaintiffs "and Dr. Elshikh in particular" are likely to succeed on the merits of the Establishment Clause claim (and thus the court did not reach the other claims).

Judge Watson acknowledged that the EO does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order—unlike its predecessor—contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.

Nevertheless, the court can certainly look behind the EO's neutral text, despite the Government's argument to the contrary, to determine the purpose of the Government action.  Judge Watson stated that the record before the court was "unique," including "significant and unrebutted evidence of religious animus driving the promulgation" of the EO and its "related predecessor."  Judge Watson then provided excerpts of several of Trump's statements, and rejected the Government's caution that courts should not look into the "veiled psyche" and "secret motives" of government decisionmakers:

The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)). Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive
 Order came to be. He said: “When [Mr. Trump] first announced
 it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it legally.’”
SAC ¶ 59, Ex. 8.
On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74.

In a footnote, Judge Watson lists "many more" examples.

Moreover, Judge Watson engaged with the plaintiffs' arguments that the EO was contextual, including pointing out that the security rationales listed in the EO included an incident involving an Iraqi national when Iraq was no longer included in the EO; the delayed timing of the EO; and the focus on nationality rather than residence.  But Judge Watson noted that while such "assertions certainly call the motivations behind the Executive Order into greater question, they are not necessary to the Court's Establishment Clause determination."

Judge Watson does note that context could change and that the Executive is not forever barred, but as it stands the purpose of the EO is one that has a primary religious discriminatory purpose and will most likely not survive the Establishment Clause challenge.

Having found a likelihood of success on the merits of the Establishment Clause claim, Judge Watson easily found there was irreparable harm and that a temporary restraining order was appropriate.

Judge Watson's injunction against Sections 2 and 6 of the EO applies "across the Nation."  Should an emergency appeal be sought, Judge Watson's order already denies a stay of the TRO, but does direct the parties to submit a briefing schedule for further proceedings.

Sixth Circuit Finds County Commission Prayer Violates First Amendment

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

In its divided opinion in Bormuth v. County of Jackson (Michigan), a panel of the Sixth Circuit has concluded that the prayer practices of a county commission violate the First Amendment's Establishment Clause.

The constitutionality of legislative prayer has most recently been before the United States Supreme Court in the sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers.  The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function.  

The Sixth Circuit first held that the County of Jackson's Board of Commissioners’ practice strays from the traditional purpose and effect of legislative prayer:

A confluence of factors distinguishes the Jackson County practice from the practices upheld in Marsh and Town of Greece. These factors include the deliverance of the invocations by the Commissioners themselves in a local setting with constituent petitioners in the audience, as well as the Board’s intentional decision to exclude other prayer givers in order to control the content of the prayers.

Additionally, the Sixth Circuit in Bormuth was troubled by the issue of coercion raised by the plaintiff.  The facts were not only that the Chair of the Jackson County Commission generally  "directs those in attendance to “rise” and “assume a reverent position" before a County Commissioner delivers a Christian prayer, but that a Commissioner "made faces" and "turned his chair around" when Bormuth expressed concern about the prayers.  One Commissioner later stated that Bormuth was attacking "my Lord and savior Jesus Christ," and another Commissioner remarked, “All this political correctness, after a while I get sick of it.”  As Judge Karen Nelson Moore wrote for the panel majority:

Admittedly, the precise role of coercion in an Establishment Clause inquiry is unclear, especially within the context of legislative prayer. In that sense, both Justice Kennedy’s and Justice Thomas’s opinions involve at least some departure from the state of the law as it existed before Town of Greece. However, given that there is controlling precedent supporting Justice Kennedy’s opinion and no controlling precedent supporting Justice Thomas’s concurrence, Justice Thomas’s concurrence is neither the “the least doctrinally far-reaching-common ground among the Justices in the majority,” nor the “opinion that offers the least change to the law.” [citation omitted]. What is more, when viewed within the context of the majority’s holding, Justice Kennedy’s opinion clearly represents the narrowest grounds. The majority’s holding was that there was no coercion. According to Justice Kennedy, this was because there was no coercion in the record. According to Justice Thomas, this was because there could never be coercion absent formal legal compulsion. Within the context of a ruling against the respondents, therefore, the narrower opinion is Justice Kennedy’s, not Justice Thomas’s. Accordingly, Justice Kennedy’s conception of coercion is the holding of the Court under binding Sixth Circuit precedent.

 In finding coercion in Bormuth,  Judge Moore noted that Town of Greece ruled that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”  Judge Moore then detailed the presence of all three of these criteria in Bormuth.

Judge Moore discussed Lund v. Rowan County, North Carolina,  in which a divided Fourth Circuit held that the identity of the person leading a prayer opening the county Board of Commissioners meeting was irrelevant and upheld a prayer led by a Board member.  Dissenting Sixth Circuit Judge Griffin wrote at length and relied heavily on Lund.  For her part, Judge Moore specifically stated that Judge Wilkinson’s panel dissent in Lund is much more convincing than the majority opinion, and noted that because Lund has been granted a rehearing en banc, this view is one that "a significant number of Fourth Circuit judges presumably share."  Additionally, however, Judge Moore found that  there are "significant factual differences" between the practice at issue in the Fourth Circuit and the one before the court in the Sixth Circuit.

The issue of legislative prayer in the context of local government continues to vex the courts; there is almost sure to be a petition for rehearing en banc in the Sixth Circuit mirroring the successful one in the Fourth.

image: Bernardo Strozzi, St Francis in Prayer, circa 1620, via National Gallery of Art