Courts keep finding religious purpose behind travel bans

In a famous line from Jodi Picoult's Salem Falls, a prep school student reflects, "Words are like eggs dropped from great heights; you can no more call them back than ignore the mess they leave when they fall." The student had reason to regret the mess her words caused. Her sexual fantasies written in a diary and perjured testimony helped to convict a teacher of assault.

I can assure you that President Donald Trump has no such remorse over the mess his words about banning the travel of Muslims have caused. Quite a mess it is.

Three courts cited the words to strike down the second executive order on the subject, issued March 6, 2017. The order suspended the entry of nationals from six mostly-Muslim countries into the United States.

The second order expired Sept. 24 and was immediately replaced by Presidential Proclamation 9645. The Proclamation is longer than the first two executive orders and more nuanced. It bars permanently the entry of nationals from eight countries. Five of the six mostly-Muslim countries mentioned in the second order are part of the eight.

Two weeks ago a federal district court in Hawaii enjoined the enforcement of the Proclamation on the grounds the president exceeded the authority granted him under the Immigration and Nationality Act of 1952. Hawaii v. Trump, 17-cv-00050 (D. Haw., October 17, 2017).

The same day, a federal district court in Maryland issued a second injunction,on the grounds the Proclamation violated the Establishment Clause. Int'l Refugee Assistance Project v. Trump, 17-cv-0361 (D. Md. October 17, 2017). It so happens that the same court ruled the second executive order to have violated the Establishment Clause. Int'l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 559 (D. Md. 2017).

In both cases the words of Mr. Trump the candidate and Mr. Trump the president combined to show a religious purpose to the order and the Proclamation.

The Establishment Clause "mandates governmental neutrality between religion and religion, and between religion and nonreligion." Epperson v. Arkansas, 393 U.S. 97 (1968). When a person challenges a government action as favoring one religion, or disfavoring a religion, the action must pass the three-prong test of Lemon v. Kurtzman, 403 U.S. 602 (1971). The first prong requires the action to have a secular purpose. This purpose must be the primary purpose and must be "genuine, not a sham."

In determining purpose a court will act as an "objective observer," reviewing all "readily discoverable fact(s)." Since "the world is not made brand new every morning," those facts include the "historical context" of the action and the "specific sequence of events" leading up to it. McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005).

The Maryland court found that the second executive order was motivated by a desire to ban Muslims as a group, based on assorted statements made by the president and his aides. The court reviewed those statements anew and reached the same conclusion about the Proclamation.

The court started with the candidate's call, first posted on his website in late 2015, for "a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on." He reaffirmed this position many times. To critics he responded he would talk "territories instead of Muslims." So doing was an "expansion" of his position, not a "rollback."

Within a week of taking office he issued the first travel ban, allegedly to protect "the Nation from Foreign Terrorist Entry." At the press conference announcing the ban, he stated, "We all know what that means."

No facts tied the seven countries subject to the ban to any terrorist threat or visa-issue failures. The order containing the ban excepted Christians residing in the listed countries.

Two courts invalidated the first travel ban, one for violating the Establishment Clause.

Six weeks later the president issued his second executive order, suspending travel from six mostly-Muslim countries. The president's aides emphasized the second order was in substance the same as the first.

The Maryland court, in its earlier decision, held the purpose of the order, "remains the realization of the long-envisioned Muslim ban." The Fourth Circuit affirmed the decision.

In spite of the findings of the courts, the president doubled down, advocating for a "far larger, tougher version" of the ban. He stated several times over the summer the Justice Department was "watering down" the ban for the benefit of the Supreme Court and to be "politically correct."

Over the past spring and summer the Department of Homeland Security reviewed the visa information-sharing procedures of nearly 200 countries and found eight to be "inadequate." In a nonpublic report to the president, DHS wrote that the risk of terrorists entering the United States through these countries was too great to allow immigrant visas and in some cases nonimmigrant visas to be issued to any nationals of the countries.

The government argued that this finding was the primary purpose for the Proclamation and it was a secular purpose. The taint of the first two executive orders had been cleansed.

The district court disagreed. It noted the ban resembled the candidate's description of a Muslim travel ban, which would be by territory or nation, the ban still skewed mightily against mostly-Muslim nations, in spite of the inclusion of North Korea and Venezuela, and the lack of evidence connecting the sweeping ban, affecting 150 million people, to the problem of information-sharing deficiencies.

Also, DHS did not deliver its report to the president until Sept. 15. His statements over the summer and in early September indicated he had not changed his opinion about the need for a ban on Muslim travel.

To the court, the latest statements - along with all that was said and written earlier - would lead "the reasonable observer using'a head with common sense'" to conclude that the Proclamation was "the inextricable re-animation of the twice-enjoined Muslim ban. No longer temporary, it was just an "enhanced expression" of the earlier ones.

Any appeal of the decision goes back to the Fourth Circuit and then possibly the Supreme Court.

If the Supreme Court accepts the case, it will have to decide if campaign statements can taint actions taken by a candidate once elected. And if so, what must the official do to remove the taint.

Whatever the outcome in court, expect more rhetoric from the president on the subject. Unfortunately, he does not clean up the messes his words create, no matter how far or wide they fall.

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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: Fri, Nov 03, 2017