On February 9, 2017, the federal U.S. Court of Appeals upheld an injunction against implementation of Donald Trump’s Executive Order banning Muslims from the U.S. The order from the federal appeals court agreed with a federal district court decision in Seattle that had blocked implementation of the Muslim Ban several days earlier.
The courts addressed three troublesome aspects of the Executive Order: (1) Section 3(c) suspends for 90 days the entry of non-U.S. citizens from seven majority Muslim countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen; (2) Section 5(a) of suspends for 120 days the United States Refugee Admissions Program, and when the suspension ends, the Secretary of State must prioritize refugees in cases in which a refugee’s religion is the minority religion in the country of his or her nationality, which is a thinly-veiled attempt to express a preference for Christian refugees; and (3) Section 5(c) suspends indefinitely the entry of all Syrian refugees except “when the person is a religious minority in his country of nationality facing religious persecution, i.e., is Christian.
The adverse impact of the Muslim Ban was immediate and widespread. Thousands of visas were immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the U.S. or denied entry on arrival, and some travelers were detained at airports. In response, the State of Washington filed a lawsuit in federal court in Seattle on January 30, 2017 alleging that the Muslim Ban was unconstitutional.
Washington demonstrated that the effect on its state universities alone was causing irreparable harm to the state. For example, the teaching and research missions of the universities are harmed by the effect on faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some students and faculty have been stranded outside the country, unable to return to the universities. The schools cannot hire faculty from the seven affected countries, which they have done in the past. For example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States. Similarly, the University of Washington had sponsored two medicine and science interns who have been prevented from coming to the University of Washington. Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals.
The federal appeals court discussed three main legal issues in its order. First, the court addressed whether it is permissible for the courts to review the Muslim Ban at all; second, the court addressed Washington’s claim that the Muslim Ban violates the constitutional requirement to afford all person due process of law (i.e. the Due Process Clause); and third, the court briefly addressed but delayed a decision on Washington’s claim that the Muslim Ban violates the Constitution’s ban on religiously-motivated laws (i.e. the Establishment Clause and Equal Protection Clause).
On the first issue, the court held that it absolutely has the right to review a President’s Executive Orders to determine whether they are constitutional: “the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. . . . There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” The court concluded: “In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
On the second issue, the court held that the Muslim Ban was likely unconstitutional under the Due Process Clause, which guarantees that every person within the U.S., as well as lawful residents or visa holders, must be afforded due process of law. By failing to give thousands of these individuals notice and comment prior to restricting their travel, the Muslim Ban violated their constitutional rights to the process required by law.
On the third issue, Washington argued that the Muslim Ban violates the
Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, Washington pointed to numerous statements by Trump about his intent to implement a “Muslim ban.” The court recognized that “[i]t is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection
Clause claims. Nonetheless, although the court considered these claims to “raise serious allegations and present significant constitutional questions,” due to the expedited nature of the case, the court decided to wait on ruling on this issue until later in the case. The order on Thursday was only a preliminary order in response to an emergency motion, and the full merits of the appeal will be decided at a later date.
In light of the fact that the Muslim Ban is likely unconstitutional and would cause serious harm to thousands of people if permitted, the court determined that an injunction should remain in place. The court did acknowledge the government’s interest in national security and setting public policy, but found that those interests did not outweigh the interests in the free flow of travel, avoiding the separation of families, and freedom from discrimination. Moreover, the government failed to provide any evidence of a terror attack carried out by any individual from the seven affected countries, thus the court was not persuaded of any imminent national security need for the ban.
The opinion is Washington v. Trump, Case No. 17-35105, and may be found on the court’s website: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf
 The Executive Order is available in the Federal Register at 82 Fed. Reg. 8,977 (Jan. 27, 2017).