Contrary to President Donald Trump’s recent suggestion that his revised travel ban is the victim of “judicial overreach,” his problem isn’t just courts in the Ninth Circuit, which have now repeatedly halted his immigration orders. It’s the executive order itself, and the intent behind it.
The first bad news for the Trump administration came Wednesday, when the district court in Hawaii rejected the administration’s insistence that its second Executive Order on immigration was a legitimate exercise of presidential power to ensure national security. Notwithstanding the Justice Department’s repeated arguments that the president’s actions on immigration are unreviewable beyond ensuring they’re “facially legitimate,” the court rejected that claim, citing not only the Ninth Circuit’s February ruling on the first Executive Order, but also the Supreme Court’s admonition that courts may not “turn a blind eye to the context in which [a] policy arose.”
Trump, not surprisingly, immediately rejected the ruling as an example of “judicial overreach” and at a rally in Tennessee claimed people are “screaming, break up the Ninth Circuit”– as if the president could just destroy the federal court structure because he doesn’t like its decisions. But no matter how much Trump rails against the courts, the executive order’s fundamental flaws will keep tripping him up. And although the Maryland court appears to have ruled more narrowly, the logic of that ruling is exactly the same, and seems likely to eventually support a complete injunction on the second executive order.
The district court in Hawaii painstakingly laid out the facts and the law. After reviewing voluminous evidence of Trump and his advisors’ intent to institute a ban on Muslims entering the United States, Judge Derrick K. Watson explained in his 43-page order that the record “includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor” and a “dearth of evidence indicating a national security purpose.”
“Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims,” he wrote, citing the 2005 Supreme Court case of McCreary County v. ACLU of Kentucky.
Despite the changes made to the second order, which removed explicit references to religion, for example, “the Court cannot find the actions taken during the interval between revoked Executive Order No. 13,769 and the new Executive Order to be ‘genuine changes in constitutionally significant conditions,’ ” he said, again citing McCreary.
The Hawaii court accordingly halted sections 2 and 6 of the order, which suspend for 90 days entry of nationals of six specified Muslim-majority countries, and suspend for 120 days the entire U.S. refugee resettlement program, and reduce by more than half the total number of refugees admissible in fiscal year 2017– from 110,000 to 50,000.
Shortly thereafter, at a rally in Tennessee, Trump reinforced the court’s central point: that the second ban had the same intent as the first one. He did this by publicly criticizing the Hawaii ruling and insisting he’d wanted to stick with his initial order all along. “My lawyers told me this is a watered-down version of the first one…I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.”
Then came the order from Maryland.
Brought by refugee assistance organizations and several named clients in the US who are seeking reunification with their relatives abroad, this motion for preliminary injunction likewise sought to halt enforcement of the entire Executive Order, claiming that both the six-country ban and the temporary suspension of the refugee program, as well as the order’s reduction in the number of refugees admissible, was equally driven by anti-Muslim animus.
In an exhaustive, 43-page order, Judge Theodore D. Chuang noted that unlike the first order, the second one at least attempted to provide support for its claim that the concern was national security. He noted, for example, the government’s claim that two Iraqi refugees and a naturalized U.S. citizen who’d come to the country as a child refugee from Somalia had been convicted of terrorism-related offenses. The executive order also stated, without any factual support or detail, that more than 300 individuals, who entered the US as refugees, were “currently the subjects of counterterrorism investigations.”
Notwithstanding these claims, the court found, after similarly reviewing statements made by Trump and his advisors, both during his campaign and since he assumed office, and both before and after his first order was blocked by the courts, that the Trump administration clearly intended to reduce the entry of Muslims to the United States through this order.
While the government claimed the order’s measures all had legitimate national security objectives, the refugee organization plaintiffs noted that DHS itself has concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and that “few of the impacted countries have terrorist groups that threaten the West.” They also noted that the 300 FBI investigations the government claims are ongoing “are dwarfed by the over 11,000 counterterrorism investigations at any one time, only a fraction of which lead to actual evidence of illegal activity.”
The court explained that even if there were some national security purpose, “if the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated.” Judge Chuang concluded: “In this unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban.”
“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.” It also notes that a six-country ban is unprecedented.
The court ultimately enjoined only Section 2(c) of the second executive order, finding that the refugee agencies and their clients had not sufficiently developed the argument to warrant enjoining the halt in the overall refugee program.
But that part of the order also makes little sense. As the court itself notes, the “secular” national security argument for halting the refugee program is the same as the argument for the six-country ban: that refugees, despite the unusually high level of vetting they receive, are somehow more dangerous than other people living in the US. It makes even less sense than the six-country ban, because the provision halts entry of all refugees, regardless of whether their country of origin is believed to support terrorists or to be engaged in violent conflict. The evidence cited to support section 6 of the executive order– that in 15 years, two Iraqi refugees and one Somali man who entered the country as a toddler were convicted on terrorism-related charges, hardly support the case. In fact, although the government doesn’t mention it, DHS enhanced security vetting after the Iraqis’ arrests, so it would make no sense for those cases to form the basis for suspension of admission now. The administration’s claim that 300 individuals who at some point entered the country as refugees are subjects of ongoing FBI investigations is no more persuasive a justification, as Judge Watson in Hawaii pointed out. What’s more, DHS has conducted its own study of the matter and found that most individuals who participated in terrorist plots in the US became radicalized years after they came to the country. Their radical inclinations therefore could not have been detected at the border.
However, there is one characteristic that many refugees coming to the US share: nearly half of them are Muslim. Indeed, in fiscal year 2016, Muslims made up a higher percentage of refugees than did Christians, for the first time since 2006, when a large number of Somali refugees entered the United States. The number of Muslim refugees resettled in the United States has risen nearly every year over the last decade, partly due to the resettlement of Iraqi refugees in the wake of the Iraq war, which generated a major refugee crisis and left many who worked with the U.S. government at grave risk. Over this same period, 81 percent of all Muslim refugees who resettled in the United States were from the seven countries listed on the order’s travel ban. In FY 2016 alone, the year in which the United States began a Syrian resettlement initiative, Syrians refugees accounted for 32 percent of all Muslim refugees resettled in the United States.
The intent behind suspension of the refugee resettlement program therefore cannot be viewed separately from the intent behind the 90-day travel ban. Given the concerns that Trump and his advisors have expressed about allowing Muslims into the United States; the fact that refugees are more carefully vetted than any other immigrants or travelers; and the lack of evidence to support the claim that they endanger national security, the Muslim identity of tens of thousands of refugees entering the United States seems the only logical reason they’ve been targeted by the executive order. The government’s interest appears to be not in “extreme vetting” but in creating permanent barriers to their entry, by creating requirements that their countries of origin, for example, which may have poor or even hostile relations with the United States, will be unable or unwilling to satisfy.
The refugee organizations may well return to court and further expand on those arguments, leading to a broader injunction out of Maryland. In the meantime, the Hawaii restraining order applies nationwide.
The Trump administration on Thursday vowed to appeal both orders. But it’s time for the White House to acknowledge that its Muslim ban is doomed, and begin to look for more legitimate and effective ways of enhancing U.S. national security.