The Facts

On January 27, 2017, President Trump initiated Executive Order 13769, which initiated a travel ban to Syria, Iran, Yemen, Libya, Somalia, and Sudan, effective March 16, 2017, as a matter of national security.

On March 6, 2017, a replacement Executive Order was executed providing additional justifications for why new provisions were necessary including, but not limited to: excluding Iraq from a country where “new visas would be banned for 90 days”, placing a hold on refugee admissions from Syria for 120 days rather than indefinitely, clarifying that green card holders were not barred from entry into the United States,” implementing “waivers that deviate from policy on a case-by-case basis” for border control agents, implementing consultation of enforcement with domestic and international entities”, and providing “guidance on how to handle people negatively affected by the previous executive order” (Reported by Louis Jacobson’s article Trump’s Travel Ban Executive Order, Take 2).

On March 16, 2017, the Maryland U.S. District Court issued a nationwide preliminary injunction, preventing “the Government from enforcing Executive Order 13780’s 90-day entry bar, but not the executive order’s bar on refugee admissions” with the Honorable Judge Chuang presiding. Just a day before, the U.S. District Court of Hawaii filed a TRO which prevented the Government from enforcing the 90-day entry bar and 120-day refugee entry bar”, with the Honorable Judge Watson presiding (Executive Order Travel Ban: NAFSA Resource).

Maryland and Hawaii

Despite the changes to the first Executive Order (which was originally rejected by Washington State but upon revision accepted), Hawaii and Maryland just still were not having it, but did bring up valid points worthy of consideration from a Constitutional perspective as I will address below.

First and foremost, one of Trump’s admirable qualities is his ability to quickly expedite tasks to complete objectives, and Executive Order 13769 was certainly within his executory powers as President. However, there is just something about an Executive Order (as TRO’s and injunction’s) that present the eerie feeling of being “strong-armed” by the powers that be that invariably, do not see eye to eye regarding the facts at hand. While I usually agree with most of what Trump says, sometimes he does have a way of making you want to disagree with how he presents his messages.

According to David Limbaugh in What’s Next for Trump Travel Ban 2.0, the Honorable Chuang blocked the “key section of the executive order that stopped the issuance of new visas to residents of six-Muslim majority countries”, while the Honorable Judge Watson “blocked that and the section that suspended the U.S. refugee program”.

Greg Jarrett with Fox News states in his article Greg Jarrett: 4 things you need to know about the rulings against Trump’s latest travel ban: “The judges relied not on the detailed language of the executive order, but on several of the remarks President Trump made as a candidate on the campaign trail, even though he later revised his stance on immigrants seeking entry into the U.S.” As discussed in further depth below, technically, under the Establishment Clause, President Trump’s past comments may be subject to interpretation in ascertaining intent under the Lemon Test; however, as this is an immigration issue, the Establishment Clause should not apply in analysis as religion is deemed a non-discriminatory factor.

Garrett further reports that Hawaii, which is in the 9th Judicial Circuit, unusually had five Republican-appointed judges publish an unsolicited filing that: “Whatever we as individuals may feel about the President or the executive order, the President’s decision was well within the powers of presidency.” Accordingly Garrett continues, “these five judges all but accuse their colleagues of judicial activism and overreach because they don’t like President Trump or his policies”.

Perhaps the reason for the unsolicited filings mentioned above was pursuant to the Congressional hearing held March 16, 2017 discussing the “possibility of splitting the 9th U.S. Circuit Court of Appeals” which currently handles one-fifth of the country’s population whose panel is composed of primarily democratic judges known for their liberal views towards humanitarian issues. Currently, if the 9th Circuit is split, two possible locations for its domicile include Arizona or Seattle, as reported by Kevin Daley in his article SPLIT IT: Congress Considers Splitting the 9th Circuit. To date, the 9th Circuit Court does not wish to split, but there is no denying that the 9th Circuit is booming in volume. However, Congress’s meeting on the matter fell on just the right date worthy of mention, but no set decision has been initiated.

Hawaii and Maryland Concerns

Moving towards more of a legal analysis, Judge Watson cited that Trump’s travel ban violated the Establishment Clause stating, “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another…stating on Page 36, that “any reasonable, objective observer would conclude…that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporary suspending the entry of Muslims”; however, even Watson admits that the Order “does not facially discriminate for or against any particular religion, or for or against religion versus non-religion” (David Limbaugh in What’s Next for Trump Travel Ban 2.0). Limbaugh further states: “So it’s not Trump’s executive order that arguably violates the Establishment Clause; it’s his alleged intent behind the order which Trump supposedly revealed in his statement during the presidential campaign and otherwise concerning Muslims.”

Similarly, Judge Chaung wrote, “These statements, which include explicit, direct statements of President Trump’s animus toward Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible, President Trump’s promised Muslim ban” (Laura Jarrett in her article Trump admin to appeal travel ban rulings ‘soon).

Hawaii also cited that the ban would “prevent residents from receiving visits from relatives in the six countries covered by the order, would harm its tourism industry, and the ability to recruit foreign students and workers” (Federal Judge in Hawaii halts Trumps Travel Ban). While one can certainly evaluate this concern, there is no legal precedent that such issues should take precedent over an Executive Order involving a matter of national security.

The Issue

The issue is whether the Establishment Clause is applicable to immigration law.

I am of the opinion it is not.

Josh Blackman in his Article: The Legality of the 3/6/17 Executive Order, Part III: The Establishment Clause states, “ The Establishment Clause, in light of foreign policy concerns and Congress’s plenary powers over naturalization, simply has not applied with full force to immigration law. This observation is buttressed by the now-familiar 8 U.S.C. § 1152(a)(1)(A). Enacted as part of the landmark 1965 Immigration and Nationality Act, this provision was designed to root out discriminatory quotas in immigration policy. It provides: Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

For the purpose of this statute, religion is purposefully omitted as a discriminatory issue. However, the Courts assume automatically that the Establishment Clause would be applicable to immigration law, which is when the Lemon Test and subsequent prongs would be analyzed accordingly.

If the Establishment Clause is deemed relevant to immigration law, technically Trump’s past comments can be evaluated pursuantly, but “on 60 Minutes, host Lesley Stahl interviewed Trump and Pence, and asked the VP candidate about [a certain] tweet. Trump interrupted Stahl, and there was cross-talk:

LESLEY STAHL:– in December you tweeted, and I quote you, “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional.”

DONALD TRUMP: So you call it territories. Okay?  We’re going to do territories. We’re going to not let people come in from Syria that nobody knows who they are. Hillary Clinton wants 550 percent more people to come in than Obama –

Here, it is evident that Trump is not referring to Muslims from a religious perspective, but of a group of people from applicable territories. Rather than name each and every country, the phrase ‘Muslim’ has predominantly been used as a classification of people indigenous to certain regions. Unfortunately, polysemy can muddle the waters when such phrase is also representative of religion. It seems apparently evident that Trump’s main concern has always been safety and protecting the nation and not the prohibition of any religious faith in general.

Further, the replacement Executive Order removes references to religion. Blackman continues: “The March 7, 2017 order removes the final three references to religion and prioritization for religious minorities, but it does request the collection of information about “so-called ‘honor killings.’” More directly, the new order repudiates the notion that the old order permitted discrimination on the basis of religion:

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities — whoever they are and wherever they reside — to avail themselves of the USRAP in light of their particular challenges and circumstances.”

Further under a due process analysis, “the small subset of aliens who would in fact be denied entry under this policy have no cognizable due process rights, and to the extent that courts find some interest exist, the review and denial by a consular officer provides all the process that is due.”

The Conclusion

Perhaps, the more pressing issue seems to be that Constitutional protections and national security seem to be at odds with one another, at the very least, with time, as Donald Trump has vowed to take the issue to the Supreme Court to initiate the Executive Order.

While I am a firm believer in Constitutional protections and believe that every single person in the United States of America has the freedom of religion, I also am an advocate of safety for the American public at large. People kill people, and categorizing based on religious classification can be confusing and muddle the waters that trigger 1st Amendment issues based more on a general classification than a bona-fide religious issue. Further, immigration law is a distinct area of practice that does not include religion as a non-discriminatory factor as it usually more mechanical in its application for the purpose of prioritizing entry to the United States.

However, as a matter of national security, there is also a vested interest to execute in a timely fashion such orders. Denying the executive power of the President’s authority to do so could lead to unwarranted acts of terror, which hardly seem indicative to the public interest at large. On the other side of the spectrum, Constitutional and due process rights are at the heart of American liberty, and States have the right to challenge such executive orders.

However, at the end of the day, most Americans could agree that their safety is the most important aspect, and I hope that premise never gets forgotten to where the UNITED States of America work together for the public interest at large without getting lost in devaluation, routines or otherwise that take the focus off legitimate safety issues in reality.

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