re Executive Order March 6, “Protecting the Nation from Foreign Terrorist Entry into the United States”

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He issued on March 6, 2017 a second Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The new EO, among other actions, temporarily suspends from “entry into the United States” certain nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen, and also temporarily suspends the U.S. Refugee Admissions Program.

Like the previous EO, the new EO has been challenged in federal court. On March 15, 2017, in State of Hawaii v. Trump, the court issued a nationwide TRO against implementation of the above-described provisions of the new EO, holding that Hawaii was likely to succeed on its claim that the new EO violates the Establishment Clause of the First Amendment. And, on March 16, 2017, in International Refugee Assistance Project (“IRAP”) v. Trump, the court enjoined implementation of the provision of the EO suspending entry of nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen, also on Establishment Clause grounds.

In reaching its holding, the Hawaii court determined that the new EO did not have a secular purpose. Rather the new EO “was issued with a purpose to disfavor a particular religion.” In support this conclusion, the Court relied in part on the following:

  • In March 2016, Mr. Trump said, during an interview, “I think Islam hates us.” Mr. Trump was asked, “Is there a war between the West and radical Islam, or between the West and Islam itself?” He replied: “It’s very hard to separate. Because you don’t know who’s who.” . . . In the same interview, Mr. Trump stated: “But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States . . .[a]nd of people that are not Muslim.”
  • [In a] July 24, 2016 interview[,] Mr. Trump was asked: “The Muslim ban. I think you’ve pulled back from it, but you tell me.” Mr. Trump responded: “I don’t know that it’s a rollback. In fact you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”
  • [D]uring an October 9, 2016 televised presidential debate, Mr. Trump was asked: “Your running mate said this week that the Muslim ban is no longer your position. Is that correct? And if it is, was it a mistake to have a religious test?” Mr. Trump replied: “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked to clarify whether “the Muslim ban still stands,” Mr. Trump said, “It’s called extreme vetting.”
  • Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”
  • On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Advisor, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].”

The IRAP court also relied on statements made by Trump as well as Giuliani, Miller, and White House Press Secretary Sean Spicer. The IRAP court found that statements made by Trump and Giuliani, “which include explicit, direct statements of President Trump’s animus towards Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible, Trump’s promised Muslim ban.” With respect to the new EO, the IRAP court pointed out that Miller and Spicer made statements indicating that “the core substance of the First Executive Order remained intact” and found that Trump’s statements regarding “the plan to ban the entry of nationals from certain dangerous countries as a means to carry out the Muslim ban  . . .  continue to explain the religious purpose behind the travel ban in the Second Executive Order.”

Note: This analysis was added March 23, 2017, in response to developing policies, proposals and events. This analysis was not part of the original Declaration 17 document signed February 23, 2017. From time to time, we may add new commentary and analysis in response to developing events.

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