The Right to Be Free From Religious Intolerance: Trump v. IRAP

This case challenges President Trump’s executive order prohibiting entry to the United States to people from six Muslim-majority countries.  The president imposed a version of the order in January, to immediate and devastating impact, as many incoming travelers were detained at airports, and families across the country were separated from their loved ones. Thousands of people flooded the airports in protest, and the courts quickly stepped in to block the ban, starting with a case filed by the ACLU and our partner organizations. Other challenges quickly followed. When federal judges temporarily blocked that ban, Mr. Trump issued the current version, which left in place the same fundamental defects.

The ACLU, along with the National Immigration Law Center (NILC) and the ACLU of Maryland, filed International Refugee Assistance Project v. Trump, which challenges the current version of the ban. In IRAP and Hawaii v. Trump, federal district courts in Maryland and Hawaii blocked key provisions of the ban, and the Courts of Appeals for the Fourth and Ninth Circuits upheld those decisions. In the IRAP case, the Fourth Circuit in Richmond, Virginia, concluded that the president’s order “drips with religious intolerance, animus, and discrimination.”  The government appealed the rulings to the Supreme Court, which agreed to hear oral arguments for both cases on October 10.

Can the president use an executive order to bar entry to anyone?

No. The president is not above the law and the Constitution. As a candidate, Mr. Trump repeatedly said he wanted to forbid Muslims from entering the United States, and then said he would do so by using nationality as a proxy. Almost immediately after his inauguration, he signed an executive order doing just that. But that’s just the kind of discrimination our Constitution prohibits. As Judge Wynn of the Fourth Circuit explained: “Laid bare, this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims.”

What are the legal issues raised by the ban?

Three provisions of the executive order are at issue: a 90-day ban on people from six overwhelmingly Muslim countries; a 120-day ban on refugees; and a reduction of the overall number of refugees to be admitted during fiscal year 2017.

The Establishment Clause of the Constitution prohibits the government from condemning any particular religion. Picking sides among religions isolates and excludes some, and leads to dangerous societal divisions along religious lines. The question here is whether the court will apply settled Establishment Clause principles to this case, or whether it will, as the government urges, blind itself to all the evidence indicating that this order was  an attempt to fulfill the president’s promise of a Muslim ban.

Another issue  is whether the president has the power to take these actions at all. The president cannot simply rewrite or ignore the laws Congress has passed. But that’s exactly what he’s done with this sweeping proclamation, which ignores Congress’s explicit prohibition of national-origin discrimination and would also upend other aspects of our immigration laws. If this ban is allowed, the president could go on to rewrite our immigration system by proclamation, without input from Congress.

The broader question raised,  as the Fourth Circuit  noted,  is whether the Constitution applies  to everyone, “rulers and people,” police officers and presidents, “equally in war and in peace.” It does.

Who are the plaintiffs?

The plaintiffs are International Refugee Assistance Project, which provides direct legal services to refugees and others seeking to escape violence and persecution;  HIAS, the country’s oldest refugee resettlement agency; the Middle East Studies Association, an association of scholars; and individuals, including U.S. citizens, personally affected by the ban.

What is the current state of the travel ban, pending a Supreme Court decision?

In June, the Supreme Court allowed the government to move forward temporarily with a narrow  version of the ban, stating that anyone with a “bona fide relationship” to a person or organization in the United States cannot be banned. That interim ruling  will remain in effect until the Supreme Court issues a final decision, sometime after oral arguments in October.

More on our upcoming Supreme Court cases

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Ban all terrorist

Banning all terrorists from the United States has nothing to do with religion on our end. Just because most terrorist are Islamic in today's age doesn't mean that will always be the case. One day Catholics might dominate terrorist group membership. Hell, white southern baptists where terrorists for years as part of the KKK. They should have been deported.

The immigration ban on terrorist producing countries is productive to our safety today. When France or China starts producing radical terrorists and do nothing to stop it, then we will ban them too.

Right now we're focused on sand-monkeys.

Anonymous

This is one of the most disgusting things I've ever had the displeasure of reading.

There are almost 2 BILLION Muslim people in the world. The percentage of them who are terrorists is infinitesimally small, yet all of the Muslim-dominant countries that are "okay" by the ban are the ones where Trump has businesses and have proven histories linked to extremist groups. Huh. Weird how that works.

When are we banning the radical terrorists that are homegrown? You know, the ones who are a little paler than these "Islamic terrorists" you're talking about, the ones who are often called "mentally ill" and a "good kid" before they go and shoot 20 first graders in cold blood? Or before they hold a rally to uphold the mentalities and principles of a group that believed in and almost succeeded in the genocide of an entire group of people? When are we going to ban the radical terrorists that bomb abortion clinics while claiming to be "pro-life" and believe in the "sanctity" of an "unborn child" while killing doctor, mother, and fetus alike in the name of their religion and their god? When are we going to ban the radical terrorists that go into a house of worship, invited by the people who are praying in its pews, and kill them all without any respect for life and then get treated to some Burger King on their way to jail? When are we going to ban the radical terrorists that create bombs and sends them to major government buildings in cars and kills 168 people?

Also, your use of the term "sand monkeys" is abhorrent. Please, get your head out of your ass (if you can manage) and expand your vocabulary.

Anonymous

The term "sand-monkeys" reveals your strong prejudice, your sweeping generalizing from the behavior of a few radicals to a large number of people, and your non-understanding of the intrinsic value of ALL human beings. One of our core American values is Freedom of Religion.
I am disgusted by your racial and religious violent and dehumanizing prejudice! Rev. Mary Ramsay

Brien

This issue ignores the most important aspect of the debate.
Would we have allowed Nazis to immigrate into America in the 40's?
You say that this is different?! Explain how it is not the same! The intents and purposes of both ideologies are the same - the conquest of the whole complete world.
Islam admits this intent - so the discussion needs to be around this issue; not the deflection of religions' freedoms.

Memberberries

You are correct. We should have banned Nazis from immigration if they were terrorist. If you remember, we did round up tens of thousands of them along with hundreds of thousands of Japanese in WW2. 'Member? Yeah, I 'member.

Anonymous

Brien...
We did allow Nazi's immigrate to the US during the 40's...
Just the ones who worked on the V-1 rocket program during WWII.

Average white b...

Muslims and black people make me uncomfortable. There I said it. Yes it's true, and true most of my white friends. When I see muslims wearing traditional garb or headdress I think to myself about 9/11. Yup, I hope future terrorist get the message. You are not spreading Islam or any other ideology but hate. And that hate grows and makes people like me afraid of all of "you". Yet in the back of mind I know as a rational person that not all Muslims are terrorist and not all terrorist are Muslims. Just like not all robbers are black, not all smart people are Chinese, not all Mexicans are roofers, and not all white people are racists. I still have faith in love.

Anonymous

"Muslims and black people make me uncomfortable." What a pussy you are. Seek some help...

Anonymous

Don't ever tell them, that they scare you. You being an American, have to be fighting mad. That you will always have a voice and you do not like their pre-programed mind, to blow themselves up and be rewarded. Who wrote that? But then at the same breath of our Religious Freedoms, you also can not hate the jewish people either. They have been the most persecuted and it is not right. Religious Freedom is just that. Free to be, without worrying about another race or belief to ever be able to wipe you out. Not without a fight back.

Muslim Ban?

I don't see Indonesia, Bangladesh, Pakistan, Nigeria, Turkey, Egypt, UAE, Kuwait, Uzbekistan, Uzbekistan, Morocco, Malaysia, Jordan, etc....on this "Do Not Admit List". If this is truly a "Muslim Travel Ban" then there should be more than six countries, because I doubt that there are only six countries which are majority Muslim and 2 billion Muslims can't fit in only six countries. Truly puzzling..that or Trump isn't up speed on the number of Muslim countries in this world.

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