Surely if a temporary ban on immigration by Muslims violates the Constitution, an indefinite ban should too. That’s exactly what Judge Theodore D. Chuang found in IAAB v. Trump, a case brought in federal court in Maryland by Americans United with its allies Muslim Advocates and the law firm Covington & Burling to stop Muslim Ban 3.0. (The National Iranian American Council also consulted in the representation.)
Judge Chuang issued a nationwide injunction, stopping President Donald Trump’s ban from going into effect in most respects, holding that it likely violates the provision in the First Amendment that bars the government from “establishing” religion and parts of the Immigration and Nationality Act (INA). Earlier in the day, a federal court in Hawaii also issued a nationwide injunction against the ban, holding that it likely violates the INA.
AU staff members and others are taking part today in a Washington, D.C., rally opposing President Trump's Muslim Ban.
We brought the IAAB case on behalf of an organization serving Iranian-Americans, including middle-school, high-school and college students; a student group at the University of Maryland; and several Americans who filed visas to bring spouses, future spouses and other family members to the United States. Judge Chuang heard their preliminary-injunction motion on Monday, along with the motions filed in two other cases challenging the ban.
Judge Chuang concluded that the desire to ban Muslims as a group from entering the United States that motivated the two earlier Muslim Bans – and caused courts to strike them down – could not be ignored now. The government had argued that Trump’s insistence on a Muslim ban, his many other statements hostile to Muslims, and his rush to implement prior bans without any national-security input no longer mattered because Ban 3.0 was based on a worldwide review of foreign governments’ information-sharing practices and other considerations.
Judge Chuang was not persuaded. He explained that “when faced with allegations of a successive Establishment Clause violation, a court must not lapse into the role of an ‘absentminded objective observer,’ but must instead remain ‘familiar with the history of the government’s action and competent to learn what history has to show.’”
Judge Chuang also noted that Trump had not even abated, much less disavowed, his hostility toward Muslims, including, just recently, “tweet[ing] a statement that a method hostile to Islam – shooting Muslims with bullets dipped in pig’s blood – should be used to deter future terrorism.”
In other words, the constitution is not divorced from common sense; and common sense dictates to any observer that Muslim Ban 3.0, which has an unlimited duration, is the realization of Trump’s promise to ban Muslims from the United States.
Judge Chuang also noted that the government did not offer the report and recommendations by agencies that it claimed showed a national-security purpose, rather than the improper religious one. At the hearing on plaintiffs’ preliminary injunction, Judge Chuang challenged the government’s lawyers over whether the ban ordered by the president was consistent with the contents of the agencies’ report, evoking the sordid World War II-era history when the U.S. Solicitor General argued for internment of Japanese-Americans without disclosing that he knew about an intelligence report that undermined the rationale for the policy.
The government’s lawyer refused to assure Judge Chuang that there were not material inconsistencies, claiming that the contents of the report were privileged because it is comprised of internal executive branch deliberations and protected presidential communications.
AU Legal Director Richard B. Katskee, Madison Fellow Andrew Nellis and I brought the case on behalf of the IAAB plaintiffs. Recently arrived Steven Gey Fellow Alison Tanner assisted on the preliminary injunction briefing.
We expect that the government will appeal the injunction and ask that it be stayed, as it did when courts blocked the prior bans. AU and its allies will continue to fight for its clients to be able to unite with their families, and be treated respectfully and equally with other Americans.
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