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On January 27, 2017, seven days after his inauguration, President Donald Trump signed Executive Order 13,769 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The Executive Order has 11 sections, containing the President’s findings, policy, and directions to the Secretaries of State and Homeland Security. Its provisions include the Implementation of Uniform Screening Standards for all Immigration Programs, an Expedited Biometric Entry-Exit Tracking System, improved Visa Interview Security Training, and other programs.
The most controversial provisions of the Executive Order are in Section 3 “Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.” It states that immigrant and nonimmigrant entry into the United States from Syria, Iraq, Iran, Libya, Sudan, Yemen, and Somalia “would be detrimental to the interests of the United States” and suspended entry for 90 days. There would also be a suspension of 120 days of the U.S. Refugee Admissions Program (Section 5). The Executive Order provided that refugee claims would be given priority if “the religion of the individual is a minority religion in the individual’s country of nationality.”
Several States filed suit to enjoin the 90 day suspension, arguing that it was an unconstitutional reach of authority by the President, and it was harmful to the State’s interests. Two Federal District Courts issued written opinions declaring the suspension unconstitutional. On February 3, 2017 the Western District of Washington entered a Temporary Restraining Order against the suspension; which was upheld in a 3 – 0 vote by the Ninth Circuit Court of Appeals. On February 13, 2017 the Eastern District of Virginia likewise declared the suspension unconstitutional and enjoined its enforcement.
The core constitutional issue was the First Amendment’s prohibition against the establishment of religion. The Ninth Circuit relied on this principle extensively in its opinion; the Federal Court in Virginia relied on it exclusively.
The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion.” In practice, this means that the Federal Government cannot prefer one religion over another. This requires a court to determine whether the motivation of any government action (whether or not officially stated) involved favoring or disfavoring those of a particular religious group. The Federal Court in Virginia explained that the test was what “an objective observer would draw from the text of the policy, enlightened by historical context.”
The Federal Courts, both the District Courts in Virginia and Washington and the Ninth Circuit, decided that the 90 day suspension was in fact the embodiment of candidate Donald Trump’s campaign promise on December 7, 2015 “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” The Court’s opinion tracked the words of candidate Trump through the campaign, and then the public statements that the Executive Branch would try to make this legal by talking about “territories” rather than religion. The Court in Virginia concluded that “reasonable observers have reasonable memories” and that Section 3 of the Executive Order was in fact, a disfavoring of those of a particular religion. Indeed, Section 5 which grants preference to those of “a minority religion” from those countries seems to be favoring Christians over Muslims.
To overcome such a constitutional hurdle, the government would have to show a threat of irreparable harm. All Courts agreed that “the Government’s interest in combatting terrorism is an urgent objective of the highest order” in the words of the Ninth Circuit. But all Courts also took note of the complete failure of the government to show how this suspension was designed to accomplish that goal. The Ninth Circuit in particular, wrote that “despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence.” Courts decide cases on the record before them, and the Government’s failure to offer any evidence of its justification was fatal to its position. In the Virginia case, the only evidence touching on national security was the absence of “any specific threat that would justify the travel ban.”
The President instead relied on the argument that his Executive Order was not subject to review by the courts at all. The Courts rejected this position with authority going back to Alexander Hamilton in the Federalist Papers, supported by an unbroken chain of Supreme Court cases, and concluding that “there is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
Some will read the opinions as very broad, and others will read them as very narrow, and both are right. The decisions reach only one part of the Executive Order and do not concern most of its substance – such as the Uniform Screening Standards, the Biometric Entry-Exit Tracking System, and the Visa Interview Security Training. The Courts have emphasized their decisions are preliminary, and if the case is heard on its merits (which is unlikely) the government could offer evidence of danger that justifies the ban. All of these points make the decisions narrow and of small substantial long term impact.
But the cases also provide a restatement of the importance of religious freedom in our constitutional republic. They recognize that no branch of the Government has authority to impose any preference in favor or against a particular religion, and (by inference) restrict its practice. The past few years have seen the Federal judiciary repeatedly strike down statutes and government practices that impose on religion by extending government mandates. This administration has started with the courts likewise rejecting government power to reach into matters of religion, or to use religion as a marker for favored or disfavored status of citizens and those who seek legal entrance.

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