On June 17, at a special ACLU of Utah Ramadan iftar, our Legislative & Policy Counsel Marina Lowe gave an overview of the ACLU's legal challenges to the Trump Administration’s Muslim Ban(s).
We’ve put Marina’s comprehensive notes into this convenient blog post, to help our supporters trace the timeline of Muslim Bans 1.0 and 2.0, and to help us all better understand the legal assertions that have proven so successful in defeating the bans in court (so far!). Enjoy!
To trace the beginnings of President Trump’s Muslim Ban, we have to look back to the presidential campaign that captured public attention throughout 2016. During his campaign, then-candidate Trump openly promised to ban all Muslim immigration into the United States. He pledged to halt acceptance of any and all Syrian refugees, threatened to implement a never-defined system of “extreme vetting,” and signaled that he would use geography as a proxy for religion as a way to craft a “legal” Muslim ban.
President Trump was inaugurated on January 20, 2017. One week later, he signed the executive order that put into immediate effect what we now call Muslim Ban 1.0. This executive order:
- Suspended the entire U.S. refugee admissions system for 120 days, even though our system is already one of the most rigorous vetting regimens in the world.
- Suspended the Syrian refugee program indefinitely.
- Banned entry of travelers from seven majority-Muslim countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – for 90 days following the signing of the order.
- Prioritized refugee claims on the basis of religious persecution, so long as the applicant belongs to a religion that is a minority in their country of origin. This provision allowed the Trump Administration to favor Christian refugees from the Middle East over Muslims from the same region.
- Lowered the total number of refugees to be accepted from any country in 2017 to 50,000, down from 110,000.
- Ordered a review of states’ rights to accept or deny refugees (in response to the refusal of several states, in 2016, to accept additional Syrian refugees, despite federal jurisdiction over the refugee admissions system).
The public reaction to Muslim Ban 1.0 was swift, strong and inspiring. Confusion and despair unfolded at ports and airports across the U.S., as approved refugees, valid visa holders, non-US dual citizens and US legal residents were detained, barred from planes or ordered out of the country.
Universities, hospitals and tech companies reeled from the order, which threatened to ban thousands of doctors, students, researchers, engineers and others.
Refugees persecuted for their sexual orientation or suffering from medical crises were in limbo with the other people denied entry, because the order made no exceptions for anyone besides for minority religion applicants.
In the 48 hours following the signing of the Executive Order, members of the public rallied by the thousands, demanding that detained refugees be released and criticizing the discriminatory nature of the Muslim Ban. Attorneys spent hours trying to access, interview them and assist detained individuals. New York taxi drivers even staged a work stoppage at Kennedy airport to protest against the orders.
Also in the 48 hours after the Muslim Ban went into effect, the ACLU filed a lawsuit in New York on behalf of Hameed Darweesh, a legal visa holder from Iraq who had worked with the U.S. military for ten years in Baghdad. On behalf of Mr. Darweesh, the ACLU asked the court to block any further implementation of the order.
The government argued that in the face of terrorism, in the interest of national security, the president has vast authority to issue such orders. The ACLU argued that the President’s campaign rhetoric made clear that this was about animus toward Muslims, not national security, and that the denial of due process and equal protection for those hurt by the ban was indefensible.
The court responded positively to the ACLU’s arguments, issuing an emergency order blocking part of the ban (in the case of valid visa holders) on January 28.
Court rulings quickly followed in Massachusetts, Virginia and Washington; these orders differed slightly from the New York court order. In Boston, Mass., a judge ordered agents to release detained people and to halt deportations, though only at Logan International. In Alexandria, Va., a judge ruled in favor only of lawful permanent residents. In Seattle Wash., a judge’s ruling was limited to just two individuals.
One of the cases was appealed to 9th Circuit, where 3 judge panel refused to allow Muslim Ban 1.0 to go into effect again. So…the Trump Administration went back to drawing board and came up with Muslim Ban 2.0.
The second version was signed into law on March 6, 2017. Thankfully, the order did not have an immediate effective date, so we didn’t see the same chaos and confusion at airports and ports that came with Muslim Ban 1.0.
Muslim Ban 2.0 contained a few other changes, as well. U.S. dual citizens and green card holders were exempted, and there was no special priority for religious minorities in predominantly Muslim countries. The order also dropped Iraq from the list of countries with a 90-day ban on incoming travel.
Despite these minor tweaks, Muslim Ban 2.0 was still vulnerable to a legal challenge, as it clearly disfavored a specific religion in direct violation of the First Amendment. Once again, the countries singled out by the executive order were not selected for identifiable national security purposes, and, well, the President himself referred to the executive order as a “ban,” via his prodigious tweeting.
Lawsuits against Muslim Ban 2.0 were filed in Hawaii, Maryland and Washington; the Maryland case was brought by the ACLU. In each case, district court judges ruled against the Trump Administration.
The cases were then appealed to the Fourth and Ninth Circuit Courts, which both issued rulings preventing ban from being implemented. In a 10-3 majority opinion, the Fourth Circuit said that the ban “drips with religious intolerance, animus and discrimination.”
Despite overwhelming losses at every level of legal challenge, Attorney General Jeff Sessions has vowed that the federal government will continue its appeals, all the way to the U.S. Supreme Court.
We anticipate that the Muslim Ban’s constitutionality will eventually be decided at the Supreme Court, and we feel hopeful about the outcome. The courageous response by members of the public in opposition to the Muslim Bans has been inspiring, as people from all backgrounds stood up for religious acceptance and compassionate approaches to global refugees. The response by the courts has been similarly strong and clear, asserting that there are limits on executive power and that religious discrimination will not be tolerated.
BONUS! There is additional ACLU litigation related to the implementation of the Muslim Ban.
The language of Muslim Ban 1.0 was vague and allowed for arbitrary and selective enforcement, which contributed to initial chaos the weekend of January 27, 2017. Because we are entitled to understand how our government operated in response to that initial executive order, on February 2, 2017, 50 ACLU affiliates filed Freedom of Information Act (FOIA) requests, seeking info on how Muslim Ban 1.0 was implemented by the U.S. Customs & Border Protection (CBP) in each state.
After two months with no response, dozens of ACLU affiliates across the country filed coordinated lawsuits in April, demanding responses to those initial FOIA requests.
Each lawsuit seeks unique, local information from CBP field offices, to clarify the public’s understanding of how CBP officers in each jurisdiction implemented the Muslim ban in the face of rapidly evolving and sometimes conflicting national guidance. The ACLU of Utah filed a lawsuit, along with several other affiliates that are based in the same CPB region.
Most recently, the government asked the courts to consolidate all the unique lawsuits; that's where the CPB FOIA litigation currently stands.
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