Federal courts flout precedent in blocking Trump's travel ban. By Nolan Rappaport
President Trump’s revised travel ban hit another roadblock last week as the federal district court for Hawaii ordered a stop to implementing the travel ban. The decision was made on the ground that the plaintiffs are likely to succeed in court on the merits of their claim that the executive order violates the Establishment Clause of the First Amendment by discriminating against Muslims on the basis of their religion.
But the court’s objection to the travel ban, which would impose a 90-day suspension on the entry into the United States of nationals from six countries which were designated by Congress and the Obama administration as posing national security risks, is that President Trump wrote it. The court even acknowledges this in its decision:
“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.The court writes 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 temporarily suspending the entry of Muslims.” This “assessment rests on the specific historical record,” which “focuses on the president’s statements about a ‘Muslim ban,’” including on the campaign trail and the fact that he asked Rudolph Giuliani how to do it legally.
“There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”
According to Eric Posner, a professor at the University of Chicago Law School, the courts are creating a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason, which with respect to the order, is the national security interest in stricter vetting.
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Published originally on The Hill.
About the author.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.