Category: Solicitor General

Here’s the key “Establishment Clause” portion of Judge Theodore D. Chuang’s decision in International Refugee Assistance Project v. Trump:

B. Establishment Clause

Plaintiffs assert that the travel ban on citizens from the Designated Countries is President Trump’s fulfillment of his campaign promise to ban Muslims from entering the United States. They argue that the Second Executive Order therefore violates the Establishment Clause. The First Amendment prohibits any “law respecting an establishment of religion,” U.S. Const. amend. I, and “mandates governmental neutrality between religion. and religion, and between religion and nonreligion,” Epperson v. Arkansas, 393 U.S. 97, 104 (1968). When a law does not differentiate among religions on its face, courts apply the test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). See Hernandez v. C.IR., 490 U.S. 680, 695 (1989). Under the Lemon test, to withstand an Establishment Clause challenge (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster’ an excessive government entanglement with religion. ‘” Id. at 612-613 (quoting

Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)). All three prongs of the test must be satisfied. Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

The mere identification of any secular purpose for the government action does not satisfy the purpose test. McCreary Cty. v. Am. Civil Liberties Union a/Ky., 545 U.S. 844,860,865 n.13

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(2005). Such a rule “would leave the purpose test with no real bite, given the ease of finding some secular purpose for almost any government action.” Id. (“[A]n approach that credits any valid purpose . . . has not been the way the Court has approached government action that implicates establishment.” (emphasis added)). Thus, although governmental statements of purpose generally receive deference, a secular purpose must be “genuine, not a sham, and not merely secondary to a religious objective.” Id. at 864. If a religious purpose for the government action is the predominant or primary purpose, and the secular purpose is “secondary,” the purpose test has not been satisfied. Id. at 860, 862-65; see also Edwards, 482 U.S. at 594 (finding a violation of the Establishment Clause where the “primary purpose” of the challenged act was “to endorse a particular religious doctrine”).

An assessment ofthe purpose of an action is a “common” task for courts. McCreary, 545 U.S. at 861. In determining purpose, a court acts as an “objective observer” who considers “the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.” McCreary, 545 U.S. at 862 (internal quotation marks omitted) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)). An “understanding of official objective” can emerge from “readily discoverable fact” without ”judicial psychoanalysis” of the decisionmaker. Id.

Plaintiffs argue that the Second Executive Order fails the purpose prong because there is substantial direct evidence that the travel ban was motivated by a desire to ban Muslims as a group from entering the United States. Plaintiffs’ evidence on this point consists primarily of public statements made by President Trump and his advisors, before his election, before the issuance of the First Executive Order, and since the decision to issue the Second Executive Order. Considering statements from these time periods is appropriate because courts may

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consider “the historical context” of the action and the “specific sequence of events” leading .up to it. Edwards, 482 U.S. at 594-95. Such evidence is “perfectly probative” and is considered as a matter of “common sense”; indeed, courts are “forbid[ den] … ‘to tum a blind eye to the context in which [the] policy arose.”’ McCreary, 545 U.S. at 866 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000)); cf Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68 (1987) (including the “historical background of the decision,” the “specific sequence of events leading up [to] the challenged decision,” and “contemporary statements of the decisionmaking body” as factors indicative of discriminatory intent), cited with approval in Edwards, 482 U.S. at 595.

One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage. This presents no incongruity, however, because purpose matters.

McCreary, 545 U.S. at 866 n.l4.
Specifically, the evidence offered by Plaintiffs includes numerous statements by

President Trump expressing an intent to issue a Muslim ban or otherwise conveying anti-Muslim sentiments. For example, on December 7, 2015, then a Republican primary candidate, Trump posted a “Statement on Preventing Muslim Immigration” on his campaign website “calling for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” J.R. 85. In a March 9, 2016 interview with CNN, Trump professed his belief that “Islam hates us,” and that the United States had “allowed this propaganda to spread all through the country that [Islam] is a religion of peace.” J.R. 255-57. Then in a March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, explaining that his call for the ban had gotten “tremendous support” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”

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into the country.” J.R. 261. On December 21, 2016, when asked whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump replied, “You know my plans. All along, I’ve proven to be right. 100% correct.” J.R.245. In a written statement about the events, Trump lamented the attack on people “prepared to celebrate the Christmas holiday” by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.” J.R. 245.

Significantly, the record also includes specific statements directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims. In a July 24, 2016 interview on Meet the Press, soon after becoming the Republican presidential nominee, Trump asserted that immigration should be immediately suspended “from any nation that has been compromised by terrorism.” J.R. 219. When questioned whether his new formulation was a “rollback” of his call for a “Muslim ban,” he described it as an “expansion” and explained that “[p]eople were so upset when I used the word Muslim,” so he was instead “talking territory instead of Muslim.” J.R. 220. When President Trump was preparing to sign the First Executive Order, he remarked, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.” J.R. 142. The day after the First Executive Order was issued, Mayor Giuliani appeared on Fox News and asserted that President Trump told him he wanted a Muslim ban and asked Giuliani to “[s]how me the right way to do it legally.” J.R. 247. Giuliani, in consultation with others, proposed that the action be “focused on, instead of religion … the areas of the world that create danger for us,” specifically “places where there are [sic] substantial

evidence that people are sending terrorists into our country.” J.R.247-48. These types of public

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statements were relied upon by the Eastern District of Virginia in enjoining the First Executive Order based on a likelihood of success on an Establishment Clause claim, Aziz, 2017 WL 580855, at *11, and the Ninth Circuit in concluding that an Establishment Clause claim against that Order raised “serious allegations” and presented “significant constitutional questions.” Washington, 847 F.3d at 1168.

These statements, which include explicit, direct statements of President Trump’s animus towards 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. In particular, the direct statements by President Trump and Mayor Giuliani’s account of his conversations with President Trump reveal that the plan had been to bar the entry of nationals of predominantly Muslim countries deemed to

constitute dangerous territory in order to approximate a Muslim ban without calling it one- precisely the form of the travel ban in the First Executive Order. See Aziz, 2017 WL 580855, at *4 (quoting from a July 17,2016 interview during which then-candidate Trump, upon hearing a tweet stating “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional,” responded “So you call it territories. OK? We’re gonna do territories.”). Such explicit statements of a religious purpose are “readily discoverable fact[s]” that allow the Court to identify the purpose of this government action without resort to “judicial psychoanalysis.” McCreary, 545 U.S. at 862. They constitute clear statements of religious purpose comparable to those relied upon in Glassroth v. Moore, 335 F.3d 1282 (lith Cir. 2003), where the court found that a Ten Commandments display at a state courthouse was erected for a religious purpose in part based on the chief justice stating at the dedication ceremony that “in order to establish justice, we must invoke ‘the favor and guidance of Almighty God. ‘” Id. at 1286, 1296 (“[N]o

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psychoanalysis or dissection is required here, where there is abundant evidence, including his own words, of the Chief Justice’s purpose.”).

Relying primarily on this record, Plaintiffs asks this Court to issue an injunction against the Second Executive Order on Establishment Clause grounds. In considering this request, the same record of public statements by President Trump remains highly relevant. In McCreary, where the Court was reviewing a third attempt to create a courthouse display including the Ten Commandments after two prior displays had been deemed unconstitutional, it held that its review was not limited to the “latest news about the last in a series of governmental actions” because “the world is not made brand new every morning,” “reasonable observers have reasonable memories,” and to impose such a limitation would render a court “an absentedminded objective observer, not one presumed familiar with the history of the government’s action and competent to learn what history has to show.” McCreary, 545 U.S. at 866.

The Second Executive Order, issued only six weeks after the First Executive Order, differs, as relevant here, in that the preference for religious minorities in the refugee process has been removed. It also removes Iraq from the list of Designated Countries, exempts certain categories of individuals from the ban, and lists other categories of individuals who may be eligible for a case-by-case waiver from the ban. Despite these changes, 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. The Trump Administration acknowledged that the core substance of the First Executive Order remained intact. Prior to its

issuance, on February 16, 2017, Stephen Miller, Senior Policy Advisor to the President, described the forthcoming changes as “mostly minor technical differences,” and stated that the “basic policies are still going to be in effect.” J.R. 319. When the Second Executive Order was

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signed on March 6, 2017, White House Press Secretary Sean Spicer stated that “[t]he principles of the [second] executive order remain the same.” J.R. 118. The Second Executive Order itself explicitly states that the changes, particularly the addition of exemption and waiver categories, were made to address ‘judicial concerns,” 2d Order S1(i), including those raised by the Ninth Circuit, which upheld an injunction based on due process concerns, Washington, 847 F.3d at 1156.

The removal of the preference for religious minorities in the refugee system, which was the only explicit reference to religion in the First Executive Order, does not cure the Second Executive Order of Establishment Clause concerns. Crucially, the core policy outcome of a blanket ban on entry of nationals from the Designated Countries remains. When President Trump discussed his planned Muslim ban, he described not the preference for religious minorities, but the plan to ban the entry of nationals from certain dangerous countries as a means to carry out the Muslim ban. These statements thus continue to explain the religious purpose behind the travel ban in the Second Executive Order. Under these circumstances, the fact that the Second Executive Order is facially neutral in terms of religion is not dispositive. See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 699-702 (1994) (holding that a facially neutral delegation of civic power to “qualified voters” of a village predominantly comprised of followers of Satmas Hasidism was a “purposeful and forbidden” violation of the Establishment Clause); cf Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 542 (1993) (holding that a facially neutral city ordinance prohibiting animal sacrifice and intended to target the Santeria faith violated the Free Exercise Clause because “the Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination” and action

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targeting religion “cannot be shielded by mere compliance with the requirement of facial neutrality”).

Defendants do not directly contest that this record of public statements reveals a religious motivation for the travel ban. Rather, they argue that many of the statements may not be considered because they were made outside the formal government decisionmaking process or before President Trump became a government official. Although McCreary, relied upon by Defendants, states that a court considers “the text, legislative history, and implementation” of an action and “comparable” official acts, it did not purport to list the only materials appropriate for consideration? 545 U.S. at 862. Notably, in Green v. Haskell County Board of Commissioners, 568 F.3d 784 (10th Cir. 2009), the United States Court of Appeals for the Tenth Circuit considered quotes from county commissioners that appeared in news reports in finding that a Ten Commandments display violated the Establishment Clause. Id. at 701. Likewise, in Glassroth, the United States Court of Appeals for the Eleventh Circuit found an Establishment Clause violation based on a record that included the state chief justice’s campaign materials, including billboards and television commercials, proclaiming him to be the “Ten Commandments Judge.” 335 F.3d at 1282, 1284-85, 1297.

Although statements must be fairly “attributed to [a] government actor,” Glassman v. Arlington Cty., 628 F.3d 140, 147 (4th Cir. 2010), Defendants have cited no authority concluding

2 In Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006), cited by Defendants, the Court criticized a dissent’s reliance on press statements by senior government officials, rather than the President’s formal written determination mandated by the Uniform Code of Military Justice, to provide justification for the government’s determination that applying court-martial rules to a terrorism suspect’s military commission was impracticable. Id. at 624 & n.52. It did not address what facts could be considered in assessing government purpose under the Establishment Clause, where courts have held that facts outside the specific text of the government decision may be considered. See Edwards, 482 U.S. at 594-95.

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that a court assessing purpose under the Establishment Clause may consider only statements made by government employees at the time that they were government employees. Simply because a decisionmaker made the statements during a campaign does not wipe them from the “reasonable memory” of a “reasonable observer.” McCreary, 545 U.S. at 866. Notably, the record in Glassroth also included the fact that the state chief justice, before securing election to that position, had made a campaign promise to install the Ten Commandments in the state courthouse, as well as campaign materials issued by members of his campaign committee. Glassroth, 335 F.3d at 1285. Because the state chief justice was the ultimate decisionmaker, and his campaign committee’s statements were fairly attributable to him, such material is appropriately considered in assessing purpose under the Establishment Clause. See id. at 1285; Glassman, 628 F.3d at 147. Likewise, all of the public statements at issue here are fairly attributable to President Trump, the government decisionmaker for the Second Executive Order, because they were made by President Trump himself, whether during the campaign or as President, by White House staff, or by a close campaign advisor who was relaying a conversation he had with the President. In contrast, Defendants’ cited case law does not involve statements fairly attributable to the government decisionmaker. See, e.g., Glassman, 628 F.3d at

147 (declining to consider statements made by members of a church that was alleged to have benefited from government action); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (lOth Cir. 2008) (declining to consider statements by the artist where the government’s display of artwork is challenged); Modrovich v. Allegheny Cty., 385 F.3d 397, 411 (3d Cir. 2004) (declining to consider statements by a judge and county residents about a Ten Commandments display where the county government’s purpose was at issue).

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Defendants also argue that the Second Executive Order explicitly articulates a national security purpose, and that unlike its predecessor, it includes relevant information about national security concerns. In particular, it asserts that there is a heightened chance that individuals from the Designated Countries will be “terrorist operatives or sympathizers” because each country is “a state sponsor of terrorism, has’ been significantly compromised by terrorist organizations, or contains active conflict zones,” and those governments are therefore less likely to provide necessary information for the immigrant vetting process. 2d Order ~ 1(d). The Order also references a history of persons born abroad committing terrorism-related crimes in the United States and identifies three specific cases of such crimes. The Order further states that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations.

Plaintiffs argue that the stated national security rationale is limited and flawed. Among other points, they note that the Second Executive Order does not identify examples of foreign nationals from Iran, Libya, Sudan, Syria, or Yemen who engaged in terrorist activity in the United States. They also note that a report from the Department of Homeland Security, Office of Intelligence and Analysis, concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and that “few of the impacted countries have terrorist groups that threaten the West.” l.R. 158. Furthermore, they note that the 300 FBI investigations are dwarfed by the over 11,000 counterterrorism investigations at anyone time, only a fraction of which lead to actual evidence of illegal activity. Finally, they note that Secretary of Homeland Security Kelly stated that there are additional countries, some of which are not predominantly Muslim, that have vetting problems but are not included among the banned

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countries. These facts raise legitimate questions whether the travel ban for the Designated Countries is actually warranted.

Generally, however, courts should afford deference to national security and foreign policy judgments of the Executive Branch. Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010). The Court thus should not, and will not, second-guess the conclusion that national security interests would be served by the travel ban. The question, however, is not simply whether the Government has identified a secular purpose for the travel ban. If the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated. See McCreary, 545 U.S. at 864, 866 n.14 (stating that it is appropriate to treat two like acts differently where one has a “history manifesting sectarian purpose that the other lacks”). Making assessments on purpose, and the relative weight of different purposes, is a core judicial function. See id. at 861-62.

In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban. First, the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters. Notably, the document providing the recommendation of the Attorney General and the Secretary of Homeland Security was issued not before the First Executive Order, but on March 6, 2017, the same day that the Second Executive Order was issued. 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.

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Second, the fact that the national security rationale was offered only after courts issued injunctions against the First Executive Order suggests that the religious purpose has been, and remains, primary. Courts have been skeptical of statements of purpose “expressly disclaim(ing] any attempt to endorse religion” when made after a judicial finding of impermissible purpose, describing them as a “litigating position.” E.g., Am. Civil Liberties Union of Ky. v. McCreary Cty., 607 F.3d 439, 444, 448 (6t~ Cir. 2010). Indeed, the Second Executive Order itself acknowledges that the changes made since the First Executive Order were to address “judicial concerns.” 2d Order S l(i).

Third, although it is undisputed that there are heightened security risks with the Designated Countries, as reflected in the fact that those who traveled to those countries or were nationals of some of those countries have previously been barred from the Visa Waiver Program, see 8 U.S.C. S 1187(a)(12), the travel ban represents an unprecedented response. Significantly, during the time period since the Reagan Administration, which includes the immediate aftermath of September 11, 2001, there have been no instances in which the President has invoked his authority under S1182(f) or S1185 to issue a ban on the entry into the United States of all citizens from more than one country at the same time, much less six nations all at once. Kate M. Manuel, Congo Research Serv., R44743, Executive Authority to Exclude Aliens: In Brief (2017); l.R. 405-406. In the two instances in which nationals from a single country were temporarily

stopped, there was an articulable triggering event that warranted such action. Manuel, supra, at 10-11 (referencing the suspension of the entry of Cuban nationals under President Reagan after Cuba stopped complying with U.S. immigration requirements and the revocation of visas issued to Iranians under President Carter during the Iran Hostage Crisis). The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary

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response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.

Finally, Defendants argue that because the Establishment Clause claim implicates Congress’s plenary power over immigration as delegated to the President, the Court need only consider whether the Government has offered a “facially legitimate and bona fide reason” for its action. See Mandel, 408 U.S. at 777. This standard is most typically applied when a court is asked to review an executive officer’s decision to deny a visa. See, e.g., Din, 135 S. Ct. at 2140 (Kennedy, J., concurring); or in other matters relating to the immigration rights of individual aliens or citizens, see Fiallo v. Bell, 430 U.S. 787, 790 (1977). The Mandel test, however, does not apply to the “promulgation of sweeping immigration policy” at the “highest levels of the political branches.” Washington, 847 F.3d at 1162 (holding that courts possess “the authority to review executive action” on matters of immigration and national security for “compliance with the Constitution”). In such situations, the power of the Executive and Legislative branches to create immigration law remains “subject to important constitutional limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (quoting INS v. Chadha, 462 U.S. 919,941-42 (1983)).

Even when exercising their immigration powers, the political branches must choose “constitutionally permissible means of implementing that power.” Chadha, 462 U.S. at 941. Courts have therefore rejected arguments that they forgo the traditional constitutional analysis

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when a plaintiff has challenged the Government’s exercise of immigration power as violating the Constitution. See, e.g., Zadvydas, 533 U.S. at 695 (rejecting deference to plenary power in determining that indefinite detention of aliens violated the Due Process Clause); Chadha, 462 U.S. at 941-43 (stating that Congress’s plenary authority over the regulation of aliens does not permit it to “offend some other constitutional restriction” and holding that a statute permitting Congress to overturn the Executive Branch’s decision to allow a deportable alien to remain in the United States violated constitutional provisions relating to separation of powers); Washington, 847 F.3d at 1167-68 (referencing standard Establishment Clause principles as applicable to the claim that the First Executive Order violated the Establishment Clause). Thus, although “[t]he Executive has broad discretion over the admission and exclusion of aliens,” that discretion “may not transgress constitutional limitations,” and it is “the duty of the courts” to “say where those statutory and constitutional boundaries lie.” Abourezk, 785 F.2d at 1061.

Mindful of “the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded,” Lynch v. Donnelly, 465 U.S. 668, 694 (1984), the Court finds that the Plaintiffs have established that they are likely to succeed on the merits of their Establishment Clause claim. Having reached this conclusion, the Court need not address Plaintiffs’ likelihood of success on their Equal Protection Clause claim.

Read the full decision here:

https://assets.documentcloud.org/documents/3518169/Read-the-federal-judge-s-ruling-in-Md-on-Trump-s.pdf

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PWS 03/16/17