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State of Hawaii, et al. v. Trump, et al. (9th Cir.)

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

In State of Hawaii v. Trump, the U.S. Court of Appeals for the Ninth 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 the order, 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  On March 6, 2017, President Trump issued a second order, which rescinded and replaced the January order.  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 State of Hawaii filed suit in U.S. District Court in Hawaii challenging the constitutionality of the order.  The district court judge ruled against the Trump Administration, and issued a preliminary injunction against implementation of the order.  The government then appealed to the Ninth Circuit.

On April 21, 2017, CAC, together with co-counsel, filed a friend-of-the-court brief in the Ninth Circuit on behalf of 165 members of Congress supporting those challenging Trump’s order.   As we argued in the 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 citizens 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 (INS), which bans such discrimination in the issuance of immigrant visas. 

On June 26, 2017, the Supreme Court granted review of the case, together with Trump v. International Refugee Assistance Project, the challenge to the travel ban in the Fourth 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: