Trump's rhetoric sinks immigration order

President Trump has promised to issue this week a new executive order on "Protecting the Nation from Terrorist Entry to the United States." That is the title of the order issued last month, whose enforcement has been enjoined. As of the writing of this column, we are awaiting the new order.

The persons drafting the new order need to be mindful of the several court decisions on the subject. A federal district court in Seattle was the first to enjoin the enforcement of the existing order in its entirety. Washington v. Trump, 17-cv-00141 (W.D. Wash. Feb. 3, 2017).

The decision of the court was actually a temporary restraining order, without any analysis as to the specific violation of the Constitution.

The government appealed, seeking a stay of the temporary restraining order. It lost, because it did not show a likelihood of success on the merits of the case. Further, it did not show the failure to enter a stay would cause it irreparable injury. Washington v. Trump, No. 17-35105 (9th Cir. Feb. 9, 2017).

Instead of making such a showing, the government contended the plaintiffs, the states of Washington and Minnesota, lacked standing (i.e, the order did not cause them a concrete and particularized injury).

In the alternative, the government argued that the courts lacked the power to enjoin the order's enforcement, because the president has "unreviewable authority to suspend the admission of any class of aliens." That the action taken may contravene constitutional rights and protections was irrelevant. To review the action would violate the separation of powers outlined in the Constitution.

The court found standing in that the nationals of the seven countries banned would not be able to enter or stay at state universities as students and faculty. Revenue would decline, research would diminish, and the general quality of education would deteriorate.

As for the unreviewability argument, the court found no precedent for it. While courts must give "deference to the political branches on matters of immigration and national security," courts have "repeatedly" reviewed and overturned actions taken in those areas, even in times of conflict. A recent example cited by the court was Boumediane v. Bush, 553 U.S. 723 (2008), which invalidated a statute depriving non-citizens being held as enemy combatants from filing habeas corpus petitions.

The court analyzed the plaintiffs' Due Process claim and found it compelling. The plaintiffs also raised a religious discrimination claim, which the court did not analyze, leaving it to the district court.

Last week a federal district court out of Virginia addressed the religious discrimination claim and held the executive order violated the Establishment Clause. Aziz v. Trump, 1:17-cv-116 (E.D. Va. Feb 13, 2017).

The First Amendment prohibits any "law respecting an establishment of religion." A law that has a religious, not a secular, purpose violates the amendment. Lemon v. Kurtzman, 403 U.S. 602 (1971). A law also violates the amendment if it "officially prefer(s) (one religious denomination) over another." Larson v. Valente, 456 U.S. 228 (1982).

Requiring a secular purpose prevents government from sending a message to nonadherants of a particular religion that hey are outsiders in our society and an accompanying message to adherants that they are insiders or favored members.

A religious purpose may be gleaned from the text of the law, its historical context, or "the specific sequence of events leading to" its adoption. The context can include statements made by relevant policy makers, both after and before they take office. The job of a court is to "determin(e) whether the proffered reason" "is the real reason."

The government argued the purpose of the executive order was to enhance national security, as stated in section 1 of the order. The court found otherwise. The order was animated by an impermissible religious motive, to disfavor Muslims in their entry into the country, and to favor Christian refugees coming to the country.

The president's campaign rhetoric came back to haunt him. The court cited his repeated calls for a "Muslim ban." On the day he signed the order, he stated his administration was "going to help" persecuted Christians, allegedly shut out under the Obama administration. The order itself makes an exception for religious minorities in the seven affected Muslim-majority countries. Two days after the signing, Rudy Giuliani said the desire for a Muslim ban was the impetus for the order, dressed up so as not to appear to be religiously motivated, at Giuliani's suggestion.

The government did not deny the existence of the statements, just that they were legally irrelevant. The court rejected this contention.

The government then argued an anti-Muslim animus could not be inferred because the executive order did not apply to most Muslims. The court responded that analyzing an alleged violation of Establishment Clause is not "a mathematical exercise. It is discriminatory purpose that matters, no matter how inefficient the execution."

Finally, the government argued the evidence on motive would render every presidential policy related to Muslim-majority countries open to challenge. The court thought this fear to be "exaggerated." Its holding rested "on the highly particular 'sequence of events' leading to this specific (executive order) and the dearth of evidence indicating a national security purpose."

We shall see what the new executive order says about entering the country and national security. However, coming on the heels of the order recently struck down, it will be tainted by the "highly particular 'sequence of events'" that the Virginia court found to be religious discrimination.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm. com.

Published: Thu, Feb 23, 2017