Oral Argument on the Muslim Ban: What You Need to Know

The entire Fourth Circuit Court of Appeals will hear oral arguments today on whether to uphold one of two existing preliminary injunctions of Donald Trump’s “Muslim Ban” executive orders. The first order, issued January 27, 2017, banned entry into the United States for 90 days by citizens or nationals of seven predominantly Muslim countries; it also indefinitely banned refugees from Syria and otherwise prioritized non-Muslim applicants. But the Ninth Circuit prevented the Trump administration from implementing the first order, prompting the president to issue a second, “watered-down version” of the order on March 6, 2017. The second order sought to ban nationals of six majority-Muslim countries and refugees from entering the United States, and it has also been blocked by federal courts in Maryland and Hawaii. Today, the Fourth Circuit will hear the government’s appeal in the Maryland case, International Refugee Assistance Project v. Trump. Here’s what you need to know about that case, and the dozens of other lawsuits challenging the order around the country.

How Many Cases Are There?

Since the January 2017 order, at least 50 cases have been filed challenging the Muslim ban in ten appeals circuits around the country (out of a total of twelve possible circuits). Of these, about 20 have been closed or withdrawn, for various reasons. For example, some of the original plaintiffs in these cases have seen their claims resolved as the terms and implementation of the ban evolved. Others decided not to pursue their claims.

About a dozen of the cases have been consolidated – i.e., combined into a single case because they deal with similar legal issues. Several were absorbed into a lawsuit in the Eastern District of New York, Darweesh et al. v. Trump. Others have been put on temporary hold pending the outcome of the two cases currently pending before the Ninth and Fourth Circuit Appeals Courts.

The main cases at the appellate level are International Refugee Assistance Project v. Trump in the Fourth Circuit and Hawaii v. Trump in the Ninth Circuit. In both cases, appeals courts are reviewing preliminary injunctions that prevent portions of the second order from being enforced nationwide. In International Refugee Assistance Project, the U.S. District Court in Maryland issued an injunction only against the travel ban section of the order. In Hawaii, the district court issued an injunction against both the travel ban and the refugee ban.

Preliminary injunctions prevent the administration from enforcing the ban for the duration of the lawsuit. They aren’t rulings on the merits of a case, but they do require those challenging the ban to demonstrate that they have a substantial likelihood of ultimately winning their case. They also need to show that without a preliminary injunction they will suffer irreparable harm, and that the injunction would be in the public interest.

Federal courts in Maryland, Washington and Hawaii found that Plaintiffs had met this burden, while courts in Boston and Virginia found they had not. The Fourth Circuit proceedings today will review whether or not to sustain the preliminary injunction in Maryland case for the duration of that lawsuit. As the first appeals court to hear arguments on the March version of the order, its proceedings will be closely watched, as will arguments in the Hawaii case, which are scheduled to be heard by the Ninth Circuit on May 15^th.

Who are the Plaintiffs, and Why are they Challenging the Ban?

• State Plaintiffs: Several states have challenged the ban directly. Typical arguments to support their ‘standing’ – a legal term describing whether or not a person or group is sufficiently impacted by a given situation to bring a lawsuit – are that they must protect their citizens from discrimination; the interests of their universities in attracting scholars and students from all around the world; and the economic interests of their businesses. So far, Washington, Minnesota, California, Maryland, Oregon, Massachusetts, Hawaii, Virginia, and New York have challenged the ban directly.
   
• Non-Governmental Organizations: Various non-profit organizations that work to protect the rights of those impacted by the ban – such as refugees and Muslim Americans – have challenged the ban. These organizations generally file both on behalf of the people they represent, and on their own behalf because the order directly affects the ability of these organizations to fulfill their missions.
   
• Individual Plaintiffs: Individual citizens and legal permanent residents have challenged the ban’s impact on their ability to travel freely and reunite with family. They argue the ban has a disparate (unequal) and discriminatory impact, subjecting them to higher scrutiny on the basis of national origin and preventing them from seeing parents, spouses, and children who are nationals of the six countries included in the ban.

What are the main arguments of the Plaintiffs?

A primary argument against the travel ban is that it violates the Establishment Clause of the First Amendment, which bars the government from preferring one religion over another. Plaintiffs have argued that by prohibiting visas only for people from Muslim countries, the executive order disfavors Islam and stigmatizes Muslim Americans. In support of this argument, they point to statements made by the President and his advisers and surrogates that make it clear that the intent of the administration is to bar Muslims from the United States. Plaintiffs have also argued that the order violates Fifth Amendment rights to due process and is illegal under the anti-discrimination provisions of the Immigration and Nationality Act, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. Per plaintiffs, there is no justifiable national security rationale for the ban, because national origin and citizenship are not reliable indicators of terrorism, a view that has been supported by over 130 national security officials and leaked analyses from the administration itself. With respect to the refugee ban, plaintiffs have argued that, in the absence of a compelling national security reason, the new restrictions on refugee admissions are an arbitrary abuse of discretion.

What are the main arguments of the Defendants?

The government argues that the courts have an extremely limited role when it comes to reviewing presidential actions on immigration and national security. In particular, in evaluating the order, the government urges the court to not consider comments made by Trump and his surrogates describing it as a “Muslim ban” consistent with campaign promises. The government argues that the travel ban does not limit immigration on the basis of religion, but rather on the basis of citizenship. It also notes that the countries affected by the ban had already been labelled high-risk under the Obama Administration. The government also contends that the refugee ban is lawful given the president’s broad statutory authority to restrict immigration and set refugee admissions levels. It characterizes the order as a temporary inconvenience in the interest of national security, while the Trump administration reviews visa and refugee vetting procedures.

High Impact Cases

IRAP v. Trump

The case being heard today was brought on February 7, 2017 in Maryland federal court by the International Refugee Assistance Project (IRAP) and HIAS (two groups that work with refugees), as well as several individual plaintiffs. It is styled as a class action on behalf of all people in the United States harmed by the first executive order, challenging both the travel ban and the refugee ban. On March 10, 2017, plaintiffs updated their case to challenge similar provisions in the second order and asked for a temporary restraining order (“TRO”) or preliminary injunction to be put in place while the court considered the lawsuit. After hearing from both parties, Judge Theodore D. Chuang granted a preliminary injunction against the travel ban – Section 2(c) of the second order – which restricts travel to the U.S. by nationals of six countries. The judge did not grant an injunction with respect to the refugee ban – the suspension of the refugee admissions program – finding that Plaintiffs had not sufficiently developed their claims.

The administration appealed the temporary injunction to the Fourth Circuit Court of Appeals and moved for an expedited schedule, citing national security concerns and the similar cases proceeding around the country. The court agreed to expedited briefing, and further decided to hear the case en banc – before all fifteen judges on the court, less any who recuse themselves. Oral arguments today will begin at 2:30 p.m. EST and live audio will be available on C-SPAN.

Washington v. Trump

Three days after Trump issued the original executive order in January 2017, the State of Washington, later joined by Minnesota, filed a lawsuit that successfully stopped implementation of the ban.  Washington Attorney General Bob Ferguson asked the federal court in Seattle to invalidate the parts of the order banning travel by nationals of seven countries, suspending and restricting refugee admissions, and indefinitely banning Syrian refugees and asked for a temporary restraining order to prevent its enforcement. On February 3, 2017, the court granted the request stopping enforcement.

Department of Justice attorneys, arguing for the Trump administration, appealed the decision to the Ninth Circuit Court of Appeals, asking the court to allow enforcement of the order to continue while the lawsuit proceeded. In doing so, the government asked the Ninth Circuit to consider the TRO as a preliminary injunction. (The difference is significant because TROs are generally not appealable as they are typically granted as a temporary, emergency measure, giving relief for a set period of time, not to exceed 14 days. A preliminary injunction, on the other hand, lasts for the duration of the lawsuit, until the court is ready to decide the case on the merits.)

After oral arguments on February 7, 2017, which were broadcast on radio, reaching a wide audience, the Ninth Circuit agreed to treat the TRO as a preliminary injunction but upheld the lower court’s ruling freezing implementation. Ruling unanimously, the court categorically rejected the government’s argument that it had no authority to review the order, stating in its opinion that “there is no precedent to support [the defense’s] claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” It further found that the States of Hawaii and Michigan had demonstrated a substantial likelihood of success on the merits of their claims under the Fifth Amendment to the Constitution that the order violated the due process rights of those traveling to the United States and noting that the government had failed to offer any “evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

Shortly after the appeals court’s decision, it became clear that the Trump administration would be issuing a revised order. While the issue of how to treat the new order was being contested in the Washington district court, a Hawaii court enjoined its implementation nationwide.

Hawaii v. Trump

Hawaii Attorney General Douglas S. Chin also filed a lawsuit following the issuance of the original order. That case was put on pause however, when the preliminary injunction in the Washington case was upheld by the Ninth Circuit. The day after Trump issued the revised order, Hawaii moved to resume the case, filing a new complaint and motion for a temporary restraining order on March 8, 2017. A week later, the court granted a nationwide order halting implementation of the travel ban and refugee provisions of the revised order. On March 29, at Hawaii’s request, the court converted the temporary order into a preliminary injunction that lasts for the duration of the case.

On March 30, the government appealed to the Ninth Circuit Court of Appeals. Both parties agreed to pause the district court proceedings until the conclusion of the appeal and asked the appeals court to expedite its consideration of the case. Hawaii also asked the Ninth Circuit to hear the case en banc rather than with the usual three-judge panel because of the importance of the case, as well as the Fourth Circuit’s decision to hear a similar case en banc. The Ninth Circuit granted a joint request for expedited proceedings, but denied the request to hear the case en banc. Oral argument in the case is scheduled for 9:30 a.m. PST on May 15, 2017 before a three-judge panel.

Timeline

January 27, 2017: Trump issues the first order, effective immediately banning U.S. travel for nationals of seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen), suspending the refugee program for 120 days, and indefinitely banning Syrian refugees. Chaos ensues at airports around the world.

January 30, 2017: Washington Attorney General Bob Ferguson files a lawsuit seeking declaratory and injunctive relief from the first order, and moves for a temporary restraining order.

February 3, 2017: Judge James Robart grants Washington’s request for a temporary restraining order, stopping enforcement of the ban nationwide. The next day, DOJ appeals the decision to the Ninth Circuit, asking to allow implementation of the order.

February 9, 2017: The Ninth Circuit denies the DOJ’s request, continuing the injunction on the original order.

March 6, 2017: To address the deficiencies of the original order identified in Washington v. Trump, the Trump Administration issues a new, “watered down” version. Among other changes, the new version removes Iraq from the list of restricted countries, offers some national security justifications in the text of the order, omits the indefinite suspension of Syrian refugee admissions, and removes language regarding preferential refugee admissions for religious minorities. The new order also provides for a 10 day delay on implementation of the provisions, establishing an effective date of March 16, 2017.

March 8, 2017: Plaintiffs in Hawaii v. Trump file a motion for a temporary restraining order against enforcement of the revised order. Plaintiffs in IRAP v. Trump file a similar motion.

March 15, 2017: The U.S. District Court for the District of Hawaii issues a temporary restraining order against Sections 2 & 6 – the travel ban and the refugee ban – of the revised order, preventing enforcement nationwide.

March 16, 2017: The U.S. District Court for the Eastern District of Maryland grants a preliminary injunction against Section 2(c) of the revised order, which prevents travel to the U.S. by nationals of six countries. On March 17, 2017, the government appeals the order to the Fourth Circuit.

March 21, 2017: Plaintiffs in Hawaii v. Trump move to convert the TRO into a preliminary injunction.

March 29, 2017: The U.S. District Court for the District of Hawaii grants the motion to convert the TRO against the revised order into a preliminary injunction.

March 30, 2017: Defendants appeal the preliminary injunction in Hawaii to the Ninth Circuit.

May 8, 2017: The Fourth Circuit Court of Appeals will hear the oral arguments of parties in IRAP v. Trump.

May 15, 2017: The Ninth Circuit will hear the oral arguments of parties in Hawaii v. Trump.