Judges Question Religious ‘Neutrality’ of Trump’s Revised Travel Ban

President Trump's executive order banning travelers from certain countries from entering the U.S. met with stiff questioning in federal court.

  • Published 8 May 2017
  • Updated 9 May 2017

On 8 May 2017, the Fourth Circuit Court of Appeals in Richmond, Virginia heard arguments in a case brought against U.S. President Donald Trump for his revised executive order banning travel to the United States from six Muslim-majority countries and suspending the U.S. refugee program.

The court has been tasked with deciding whether to uphold a preliminary stay granted by a U.S. district judge in Maryland in March against a portion of the order banning entry by foreigners from designated countries. Like a previous injunction imposed by a federal court in Hawaii, the Maryland ruling sprang from the determination that the ban violates Constitutional protections on religious freedom, an issue that once again took center stage in the Richmond court.

Led by the American Civil Liberties Union’s Omar Jadwat, attorneys for those challenging the ban argued that it caused injury to all those subjected to it, “not only with respect to immigrant visas, not only with respect to non-immigrant visas, but because it is embodying the message of condemnation to their religion that is the quintessence of an establishment clause violation.”

Acting Solicitor General Jeffey Wall, on the other hand, argued on behalf of the administration that the ban is actually “neutral” with respect to religion, an assertion questioned by some of the judges.

“It’s not neutral in its impact on Muslims,” Judge Patricia Harris objected. “It has a disparate impact on Muslims.”

Wall answered:

The law operates to suspend the entry of all nationals of the listed countries without regard to religion. That would have a disparate impact, I grant you, for countries that are majority Muslim, but so would every action that we undertake under the immigration laws with respect to those countries.

Also at issue (as in previous hearings on both this and an earlier version of the executive order) were Trump’s own campaign statements in which he vowed to enact a “Muslim ban,” a designation Wall said ought not to be taken at face value:

I think what the President made clear — granted, he clarified this over time — but he made clear in the months leading up to the election and after the inauguration that what he was talking about was the threat from terrorist groups that operate in particular countries that have been designated state sponsors of terror, or designated countries of concern because they’re safe havens for terrorists. He made clear that he was not talking about Muslims all over the world, and that’s why this is not a Muslim ban.

The judges grilled Jadwat just as intensely, in particular on whether the executive order was illegitimate “on its face” or only because of Trump’s previous campaign statements. 

Judge Dennis W. Shed appeared to side with the administration, suggesting that the lower court gave inadequate weight to the interests of national security and observing that the travel ban affected fewer than 10 percent of the world’s approximately 2 billion Muslims.

In a press conference after the hearing, Jadwat told a group of reporters: 

The question here is whether just because [President Trump] mentions national security he’s going to be allowed to basically rip up the religious freedom portions of our Constitution and throw them in the garbage. And the answer to that question has to be no.

It is unknown precisely when the courts will render a judgment, though it is expected within a matter of weeks. A  three-judge panel of the Ninth Circuit Court of Appeals is to hold a hearing on the Hawaii injunction on 15 May 2017.

President Trump has said he will take the travel ban to the Supreme Court if necessary.

In another development regarding the travel ban, former Acting Attorney General Sally Yates was called upon during an 8 May hearing of the Senate Judiciary subcommittee investigating Russian interference in the 2016 election to defend her refusal to enforce Trump’s original ban (for which she was fired). Under questioning by Sen. John Cornyn (R-Texas), who accused Yates of undermining the president and called her actions “enormously disappointing,” she said:

I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with the principles of the Department of Justice, and I said ‘no.’ And that’s what I promised you I would do, and that’s what I did.

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