The court challenges to President Trump’s “travel ban” continue as The United States Court of Appeals for the Fourth Circuit, in Richmond, Virginia has joined the Ninth Circuit in holding President Trump’s travel ban invalid.[i]
The ban, which restricts immigration and travel from eight nations, six of them predominantly Muslim, was allowed to go into effect by the Supreme Court while the two cases move through the courts.
Two cases are making their way through the courts. Hawaii v. Trump was brought by the State of Hawaii and challenges the ban on three different theories, 1) whether the President has the authority to impose the ban, 2) whether parts of the ban are impermissibly overbroad, and 3) whether the ban violates the establishment clause of the Constitution. International Refugee Assistance Project v. Trump, is a consolidation of several lawsuit brought in the Federal District in Delaware and challenges the ban on two of the same issues, the establishment clause and being overbroad.
The establishment clause comes from the First Amendment, it reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. It goes on to protect freedom of speech, freedom of the press, the right of people to peaceably assemble and to petition government for a redress of grievances.
The Ninth Circuit in Hawaii v. Trump held that President Trump exceeded the authority granted to him by Congress over immigration.[ii]
The Fourth Circuit held that the ban violates the Constitution’s Establishment Clause which forbids discrimination on religious grounds. The court’s decision was based in part on its interpretation of the President’s comments about the ban and his characterization of it as a “Muslim Ban”.
The Supreme Court has linked the two cases and will consider both opinions in their review of the cases.
This is President Trump’s second attempt at imposing extreme restrictions on travel and immigration to the United States. His first travel ban was also held to be invalid upon a challenge by Hawaii, but it became moot as it expired and was not renewed. The first ban, signed only seven days after taking office, banned entry for people from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen for 90 days. These countries are all Muslim majority countries. In his public discussions of the ban, President Trump repeatedly called it a Muslim ban. The court in the first Hawaii case held that the President’s language and choice of countries made it clear that this ban was based on a religious test, which is prohibited by the establishment clause of the Constitution. It was also blocked by courts in New York and Massachusetts and Washington State. The government did not renew the ban after the 90 days was up and the challenges became moot.
The current travel ban removes Iraq from the list of blocked countries and makes exceptions for people who already have green cards or visas. The Hawaii court blocked the ban before it was even to take effect. The Supreme Court has since agreed to hear the two cases and has allowed the government to implement the ban while the cases are heard.
[i] http://coop.ca4.uscourts.gov/opinions/Published/172231.pdf
[ii] http://cdn.ca9.uscourts.gov/datastore/general/2017/12/22/17-17168%20-%20opinion.pdf
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