The U.S. Court of Appeals for the Fourth Circuit will hear oral arugment on May 8th regarding Maryland U.S. District Judge Theodore Chuang’s order that halted President Trump’s ban on issuance of visas to people from six Muslim-majority countries.
US District Judge Theodore Chuang issued an order that halted enforcement of the second travel ban on the erroneous basis that it likely violates the Establishment Clause of the First Amendment because it discriminates against Muslims. Judge Chuang’s order:
• Acknowledged but failed to recognize the president’s statutory authority to execute the ban pursuant to Sections 1182(f) and 1185(a) of Title 8.
• Failed to consider the travel ban addressed only six of forty-nine (12%) Muslim majority countries. Pew Research reported on January 31, 2017 there are forty-nine Muslim majority countries.
• Ignored the fact that the travel ban applied equally to all nationalities and religions from the six designated countries.
• Failed to recognize that for the past 30 years, every President has invoked that power to protect the Nation by suspending entry of categories of aliens.
• Is unprecedented in that it restrains an executive order by the President of the United States because of statements that he made as a private citizen before he swore an oath to support and defend the Constitution.
• Strongly appears to place a priority on politics instead of justice.
Judge Chuang’s order perpetuates a dangerous myth that President Trump’s travel ban is a “Muslim Ban.” What other federal laws will be unenforceable against Muslims if the U.S. Courts rule that President Trump and his administration are biased against Muslims? Islamist activists are already filing suits to prevent law enforcement agencies from surveilling mosques and Muslims.
The Trump administration filed a brief with the U.S. Court of Appeals for the Fourth Circuit on March 24, 2017. The introduction to that brief, which provides a summary of President Trump’s position in this case, is posted at the bottom of this article. The court of appeals is scheduled to hear oral arguments starting on May 8, 2017. The court order regarding dates is posted here.
Nearly 25,000 people sent emails in 2014 and 2015 through Floridafamily.org that urged the judges serving on the 9th U.S. Circuit Court of Appeals to reverse a three judge panel decision that banned the Youtube.com video titled Innocence of Muslims, a critique of Mohammad.
Florida Family Association has prepared an email for you to send to urge judges serving on the U.S. Court of Appeals for the Fourth Circuit to make national security a priority over politics and public safety a priority over political correctness in the case of International Refugee Assistance Project v. Donald J. Trump (No. 17-1351.)
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Click here to send your email to urge judges serving on the U.S. Court of Appeals for the Fourth Circuit to make national security a priority over politics and public safety a priority over political correctness in the case of International Refugee Assistance Project v. Donald J. Trump (No. 17-1351.)
United States March 24, 2017 Brief before the US Court of Appeals for the Fourth Circuit.
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center, Inc., on behalf of itself; HIAS, INC., on behalf of itself and its clients; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of itself and its members; MUHAMMED METEAB; PAUL HARRISON; IBRAHIM AHMED MOHOMED; JOHN DOES #1 & 3; JANE DOE #2
Plaintiffs - Appellees
DONALD J. TRUMP, in his official capacity as President of the United States; DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; JOHN F. KELLY, In his official capacity as Secretary of Homeland Security; REX W. TILLERSON, In his official capacity as Secretary of State; DANIEL R. COATS, In his official capacity as Director of National Intelligence
Defendants - Appellants
The district court’s order in this case is extraordinary. The court entered a nationwide preliminary injunction against an Executive Order issued by the President of the United States, pursuant to express statutory authority, that temporarily suspends the entry of aliens from six countries of substantial terrorism related concern. The court acknowledged that, consistent with the Executive’s constitutional authority over foreign affairs and national security, Sections 1182(f) and 1185(a) of Title 8 authorize the President to suspend or restrict entry of any class of aliens when in the national interest. For the past 30 years, every President has invoked that power to protect the Nation by suspending entry of categories of aliens. Here, after consulting with the Attorney General and the Secretaries of State and Homeland Security, the President issued Executive Order No. 13,780 (2017) (Order), Section 2(c) of which suspends the entry of certain foreign nationals from Iran, Sudan, Syria, Libya, Somalia, and Yemen for 90 days, while the new Administration reviews the Nation’s screening and vetting procedures to ensure that they adequately detect terrorists.
The district court did not dispute that the President’s national-security determination provides “a facially legitimate and bona fide reason” for Section 2(c). Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). The court simply declined to apply Mandel, holding instead that Section 2(c) likely violates the Establishment Clause of the First Amendment. The court did so, however, not because the Order refers to, or distinguishes on the basis of, religion: the Order applies to all nationals of the listed countries, without regard to their religion. Nor did the court enjoin the President’s action because the Order’s focus on a handful of Muslim-majority countries is unprecedented: in 2015 and 2016, Congress and the Executive excluded individuals with certain connections to these six countries (as well as Iraq) from travel under the Visa Waiver Program because of heightened terrorism concerns, thereby requiring additional review before admitting them to our country. Here, the President determined in the interest of national security to take an additional step and place a temporary pause on entry of aliens from these same countries, subject to case-by-case waivers, while vetting procedures are reviewed.
The district court enjoined the facially neutral Order on the rationale “that the travel ban on citizens from the designated countries is President Trump’s fulfillment of his campaign promise to ban Muslims from entering the United States.” Appendix (A.) 628. The court largely based its decision on campaign statements made by then-candidate Donald Trump while running for public office. That is unprecedented. Even in the domestic setting, courts judge the legitimacy of a law by what it says and does, and occasionally by the official context that surrounds it — not by what supposedly lies in the hearts of its drafters. The decision below goes even further: it enjoins an action by the President of the United States because of his statements as a private citizen—before he swore an oath to support and defend the Constitution, formed his Administration, assumed the responsibilities of governance, and consulted with Executive officials responsible for legal, national security, foreign-relations, and immigration matters.
The court should have focused on official acts, not perceived subjective motivations. The Order replaces former Executive Order No. 13,769 (2017) (Revoked Order). After the Ninth Circuit declined to stay a nationwide injunction against the Revoked Order, the President decided to issue a new Order, in part to address that court’s concerns. The new Order does not apply to lawful permanent residents or foreign nationals in the United States, but only to certain aliens outside the United States who lack a valid visa—individuals who “have no constitutional rights regarding” their admission. Landon v. Plasencia, 459 U.S. 21, 32 (1982). Even as to them, the Order includes a comprehensive waiver process to mitigate any undue hardship. And it contains no preference for refugees who are religious minorities. The Order thus represents the President’s good-faith effort to accommodate courts’ concerns while simultaneously fulfilling his constitutional duty to protect the Nation.
To be sure, the Order has been the subject of heated political debate. But the precedent set by this case will long transcend this Order, this President, and this constitutional moment. The decision below openly second-guesses and enjoins the President’s national-security judgment—even though the plaintiffs’ claims are not justiciable (Part I), their claims are not likely to succeed on the merits (Part II), only the government faces imminent and irreparable injury from its inability to effectuate the Order (Part III), and plaintiffs are plainly not entitled to a nationwide injunction that extends beyond any individual harms they have shown (Part IV). In cases that spark such intense disagreement, it is critical to adhere to foundational principles concerning justiciability, statutory and constitutional interpretation, and the scope of injunctive relief. Applying those principles here, the injunction below should be reversed.
Chief Judge Roger L. Gregory
Judge J. Harvie Wilkinson III
Judge Paul V. Niemeyer
Judge Diana Gribbon Motz
Judge William B. Traxler, Jr.
Judge Robert B. King
Judge Dennis W. Shedd
Judge Allyson K. Duncan
Judge G. Steven Agee
Judge Barbara Milano Keenan
Judge James A. Wynn, Jr.
Judge Albert Diaz
Judge Henry F. Floyd
Judge Stephanie D. Thacker
Judge Pamela A. Harris
Senior Judge Clyde H. Hamilton
Senior Judge Andre M. Davis