Two Courts Find That, Yes, It Was a Muslim Ban All Along

The federal courts have dealt two more blows to President Trump’s ongoing attempt to ban Muslims from entering the United States. The two rulings, issued yesterday in separate lawsuits in Hawaii and Maryland, made clear that the president’s second Muslim ban executive order is just as unconstitutional as the first.

The first blow came yesterday from a federal court in Hawaii. Just hours before the travel ban was scheduled to go into effect at 12:01 a.m. this morning, the court issued a ruling blocking the operative provisions of the executive order — both the ban against people from six predominantly Muslim countries and the provisions blocking refugee resettlement in the United States. The second ruling, in a case brought by the ACLU and the National Immigration Law Center on behalf of clients including the International Refugee Assistance Project and HIAS, came just before 2 a.m. from a Maryland district court. That ruling also blocked the six-country ban.

Urge your senators to oppose Muslim ban 2.0.

The breadth of the Hawaii ruling means that, for now, no part of the executive order can take effect without further input from the courts.

A few main takeaways:

1. Keep talking, Mr. President.

Despite the government’s claims to the contrary, both judges found ample evidence that religious discrimination, in clear violation of the First Amendment’s Establishment Clause, had motivated the executive order. The courts pointed to the words of the president himself, whose various statements during and since his campaign, including his campaign promise of “a total and complete shutdown of Muslims entering the United States,” provided clear evidence of his intent to target Muslims based on religion.

We also have the president’s associates’ words. When Rudy Giuliani boasted that Trump had asked him to craft a Muslim ban that could pass legal muster, and Stephen Miller stated that the second executive order would have the same basic effect as the first, they helped confirm the unlawful purpose.

As a result, despite the changes made to the second order, the U.S. District Court for the District of Maryland noted that “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.”

2. National security was not the point.

The federal court in Maryland, in particular, saw through the Trump administration’s claims that the ban was about national security, pointing to the absence of any evidence suggesting that nationals from the six countries pose a heightened threat to the United States. To the contrary, the court noted, a bipartisan group of former senior U.S. national security officials filed a friend-of-the-court brief stating that no acts of terrorism have been committed by citizens of the six countries since 9/11 and that no intelligence as of January suggested a heightened threat.

To make matters worse, the federal judge noted that the White House never bothered to reach out to national security experts before implementing the first ban. This fact all but destroyed the national security rationale for the Muslim ban, according to the judge:

“In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban… 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.”

3. Now what?

For now, thanks to the Hawaii decision, both main sections of the executive order are blocked. The Maryland court indicated it will issue a ruling in the near future on the executive order’s illegal reduction of refugee admissions. It’s unlikely that the district courts will have the last word, as the government is likely to appeal these decisions.

And if it does, we will fight those appeals every step of the way. 

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Anonymous

A question that I have faced since the second ban came out is that why 90-day ban again? The whole idea of the first ban was imminent national security threat and DHS was supposed to investigate the vetting process and have a report ready in 30 days. Almost 7 weeks have passed, what DHS has done so far if all the reason is to keep the US safe? Putting the same time period of 90 days ban again without any explanation doesn't suggest this cannot be about security? And lets not forget that it is correct this 6 or 7 countries on the ban are countries of concern, but keep in mind that because of being country of concern, people coming from those countries are subject to extreme vetting process already. I think most concerns come from those dangerous people being born in countries that have visa waiver with US.

david b

Well done ACLU. If they want to craft an instrument for national security they have the full resources of the u.s. to do so. Using that as a guise to pander to extremists, racists, and xenophobes is another thing all together.

If they provided competent ,evidence based, reasonable policies and procedures even liberals would rally behind that policy. Any time the president doesn't act like a power-hungry, narcissistic, child thats found himself in a position of strength over other, the media and large sections of the liberal left fawn all over him.

Well done ACLU for keeping up the fight. Donation incoming.

Lynda Ross

Thank you. Thank you. Thank you.

When ignorant bigots run amok seeking to overthrow the Constitution and in its place instigate a noxious mob rule rancid with hate-mongering and religious bigotry wrapped up in an American flag, the Constitution still rises, still overcomes and still prevails thanks to the foresight of the founding fathers in creating an independent judiciary and limiting the powers of the legislative and executive branches.

To the ACLU and the AG's and all those who answer the call to serve protect and defend the Constitution.... a grateful nation thanks you.

Andrew

This argument is amount to judicial mind-reading. It's saying that it's only unconstitutional because Trump and Trump alone signed it. If Obama had signed an identical EO, it would have been okay just because Obama's campaign rhetoric from ages past never said anything about a "Muslim ban". The Hawaiian judge is a farce. Literally, if hypothetical President A signed the order = "unconstitutional", but if hypothetical President B signed the order = perfectly okay. That proves the judicial activism right there---they don't even consider the text of the EO, only which hypothetical president is signing it. Hope this gets to SCOTUS some real justices can look it over (you know...ones that compare the actual text of the EO to...you know...those compilations of actual written text called "laws"). Enough of the magical judicial mind-reading by this Hawaiian farce.

Anonymous

But what about Indonesia, who has over 85% muslim population. They aren't banned so it isn't a muslim ban.

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