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International Refugee Assistance Project, et al. v. Trump, et al. (4th Cir.)

REAC CAC’S BRIEF ON BEHALF OF 165 MEMBERS OF CONGRESS IN IRAP v. Trump

In International Refugee Assistance Protect, et al. v. Trump, et al., the United States Court of Appeals for the Fourth Circuit considered whether President Trump’s travel and refugee ban violates the Religion Clauses of the First Amendment, the Due Process Clause of the Fifth Amendment, and the ban on nationality discrimination in the issuance of immigrant visas contained in the Immigration and Nationality Act.

On January 27, 2017, President Trump issued an executive order that banned individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen – all majority Muslim countries – from entering the United States. It also gave preference to non-Muslim refugees over Muslim refugees entering from other countries worldwide.  The order abridged the rights of countless individuals with ties to the seven Muslim-majority countries named in it, barred from entry into the United states hundreds of visa holders who had already undergone months of rigorous vetting, and led to the unjustified detention at airports of countless individuals lawfully entering the country.  On March 6, 2017, President Trump issued a second order, which rescinded and replaced the first one.  The new order continued to discriminate against and target Muslims by barring entry for virtually all individuals from six of the Muslim-majority countries named in the first order, except those who are lawful permanent residents of the United States and visa holders.  The International Refugee Assistance Program filed suit in U.S. District Court in Maryland challenging the constitutionality of the March order, and the district court issued a preliminary injunction against implementation of the provision of the order that, with certain exceptions, suspended entry into the country of individuals from the six Muslim-majority countries.  The government then appealed to the Fourth Circuit Court of Appeals.

On April 19, 2017, CAC, together with co-counsel, filed a friend-of-the-court brief in the Fourth Circuit on behalf of 165 members of Congress, supporting those challenging the executive order.  As we argued in our brief, even though the second order attempts to cure the first order’s legal infirmities, it similarly discriminates on the basis of religion and thus cannot be squared with the text and history of the Constitution.  One of our nation’s most deeply rooted constitutional values is that the government must neither establish nor favor (or disfavor) any particular religion.  Both Article VI and the First Amendment of the Constitution forbid singling out members of a specific religion for disparate treatment.  Additionally, religious discrimination violates the Fifth Amendment’s guarantee of due process, which protects both citizen and noncitizens.  Our brief also argued that the executive order discriminates on the basis of national origin in violation of equal protection principles and the Immigration and Nationality Act, which bans such discrimination in the issuance of immigrant visas. 

The Fourth Circuit heard oral argument en banc on May 8, 2017.  On May 25, 2017, the Fourth Circuit ruled, as CAC had urged, that Trump’s executive order unconstitutionally discriminates on the basis of religion.  According to the court, the order, which “in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination,” violates the Establishment Clause of the First Amendment, and “stands to cause irreparable harm to individuals across this nation.”  Echoing CAC’s emphasis on the courts’ responsibility to be a check on the President’s unlawful actions, the Court of Appeals explained that “vigorous judicial review is required when an immigration action’s constitutionality is in question.”  The government filed a petition for certiorari with the Supreme Court.

On June 26, 2017, the Supreme Court granted review of the case, together with Trump v. Hawaii, the challenge to the travel ban in the Ninth Circuit Court of Appeals. The Court also granted a limited stay of the lower courts’ injunctions, allowing the order to go into effect for individuals who “lack any bona fide relationship with a person or entity in the United States.”

Oral argument is expected to be heard in October 2017.

Briefs filed by CAC: