President Trump issued an executive order that, among other things, banned individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen – all majority Muslim countries – from entering the United States.  Following successful court challenges to the first ban, President Trump, on March 6, 2017, issued a second order, which made a number of minor revisions, but continued to discriminate against and target Muslims.  A federal district court in Maryland issued preliminary injunctive relief preventing enforcement of Trump’s revised order, and in April 2017, CAC filed a friend-of-the-court brief on behalf of members of Congress urging the court to strike down Trump’s Muslim ban.  The Fourth Circuit, sitting en banc, affirmed the district court’s decision.

The Trump Administration asked the Supreme Court to hear the case, the Supreme Court agreed to do so and partially stayed the injunction pending appeal.  CAC filed a friend-of-the-court brief in the Supreme Court on behalf of members of Congress urging the Justices to strike down Trump’s Muslim ban.  Before the Court could hear oral argument, President Trump issued a third travel ban that placed varying levels of travel restrictions on citizens of eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Because the new order superseded the old one, the Supreme Court removed the case from its oral argument schedule and sent it back to the court of appeals with instructions to dismiss the case as moot.

Meanwhile, the plaintiffs filed an amended complaint challenging the third travel ban and sought injunctive relief.  In October 2017, the Maryland district court issued a preliminary injunction enjoining the new order, which the Government appealed.  (The Supreme Court subsequently stayed the injunction pending disposition of the Government’s appeal and disposition of the Government’s petition for a writ of certiorari if it ultimately files such a petition.)

CAC filed another friend-of-the-court brief on behalf of members of Congress in the Fourth Circuit in support of the plaintiffs.  Our brief first argued that the President’s sweeping order exceeds the President’s delegated powers under the Immigration and Naturalization Act and violates our Constitution’s system of separation of powers.  The order writes discrimination into our nation’s immigration laws, ignoring Congress’s carefully chosen, specific criteria for excluding from our country persons suspected of terrorist activity and flouting Congress’s prohibition on nationality-based discrimination in the issuance of immigrant visas.  The President’s powers, though broad, do not permit him to supersede immigration laws enacted by Congress that he dislikes.

Second, as our brief also explained, even if the order did fall within the President’s delegated authority – which it does not – it would violate the First Amendment’s Establishment Clause, which forbids laws that target a disfavored religious minority for discriminatory treatment.  As history shows, the Framers were familiar with colonial religious establishments that tried to keep out disfavored religious believers.  The First Amendment denies the federal government the power to write this kind of religious discrimination into law.  Because the President’s latest order, like its predecessor, is infected by anti-Muslim animus, it violates the First Amendment.

The Fourth Circuit upheld the district court’s decision, explaining that the order, like its predecessors, clearly reflects “unconstitutional animus” toward Muslims which violates the Establishment Clause’s prohibition on religious discrimination. For additional information on litigation related to this issue, see Hawaii v. Trump.