Here is the opinion issued today by U.S. District Court Judge Theodore Chuang explaining his injunction against President Donald Trump’s revised Muslim immigration, refugee, and travel ban.
Among his findings, Judge Chuang concludes that the revised executive order still has an impermissible purpose of discriminating against Muslims:
“…explicit, direct statements of President Trump’s animus towards Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible, President Trump’s promised Muslim ban. In particular, the direct statements by President Trump and Mayor Giuliani’s account of his conversations with President Trump reveal that the plan had been to bar the entry of nationals of predominantly Muslim countries deemed to constitute dangerous territory in order to approximate a Muslim ban without calling it one – precisely the form of the travel ban in the First Executive Order….the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban. The Trump Administration acknowledged that the core substance of the First Executive Order remained intact….Defendants do not directly contest that this record of public statements reveals a religious motivation for the travel ban….all of the public statements at issue here are fairly attributable to President Trump, the government decisionmaker for the Second Executive Order, because they were made by President Trump himself, whether during the campaign or as President, by White House staff, or by a close campaign advisor who was relaying a conversation he had with the President.”
Judge Chuang, who is a former Deputy General Counsel for the U.S. Department of Homeland Security and a former trial attorney for the U.S. Department of Justice, then rejects any “secular” rationale for the executive order based on national security interests:
“…courts should afford deference to national security and foreign policy judgments of the Executive Branch….The Court thus should not, and will not, second-guess the conclusion that national security interests would be served by the travel ban. The question, however, is not simply whether the Government has identified a secular purpose for the travel ban. If the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated….
In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban. First, the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters. Notably, the document providing the recommendation of the Attorney General and the Secretary of Homeland Security was issued not before the First Executive Order, but on March 6, 2017, the same day that the Second Executive Order was issued. The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.
Second, the fact that the national security rationale was offered only after courts issued injunctions against the First Executive Order suggests that the religious purpose has been, and remains, primary….
Third, although it is undisputed that there are heightened security risks with the Designated Countries, as reflected in the fact that those who traveled to those countries or were nationals of some of those countries have previously been barred from the Visa Waiver Program….the travel ban represents an unprecedented response. Significantly, during the time period since the Reagan Administration, which includes the immediate aftermath of September 11, 2001, there have been no instances in which the President has invoked his authority…to issue a ban on the entry into the United States of all citizens from more than one country at the same time, much less six nations all at once….The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.
…the Supreme Court has stated that ‘no governmental interest is more compelling than the security of the Nation.’…Defendants, however, have not shown, or even asserted, that national security cannot be maintained without an unprecedented six-country travel ban, a measure that has not been deemed necessary at any other time in recent history. Thus, the balance of the equities and the public interest favor the issuance of an injunction.”
Having served in all three branches of the federal government (he also served as counsel to the House Oversight and Government Reform Committee and the House Energy and Commerce Committee), Judge Chuang also rejects the argument that this presidential action is beyond review by the courts: “Even when exercising their immigration powers, the political branches must choose ‘constitutionally permissible means of implementing that power.’…Thus, although ‘[t]he Executive has broad discretion over the admission and exclusion of aliens,’ that discretion ‘may not transgress constitutional limitations,’ and it is ‘the duty of the courts’ to ‘say where those statutory and constitutional boundaries lie.'”
Judge Chuang concludes: “While Plaintiffs would likely face irreparable harm in the absence of an injunction, Defendants are not directly harmed by a preliminary injunction preventing them from enforcing an Executive Order likely to be found unconstitutional…. Preventing an Establishment Clause violation has significant public benefit beyond the interests of the Plaintiffs. The Supreme Court has recognized the ‘fundamental place held by the Establishment Clause in our constitutional scheme.’… The Founders ‘brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion’ because they understood that ‘governmentally established religions and religious persecution go hand in hand.’… When government chooses sides among religions, the ‘inevitable resul’ is ‘hatred, disrespect, and even contempt’ from those who adhere to different beliefs….Thus, to avoid sowing seeds of division in our nation, upholding this fundamental constitutional principle at the core of our Nation’s identity plainly serves a significant public interest.”
Ignatius Bau 