Less than a week after taking office, President Trump began the process of following through on his campaign promise of instituting a Muslim ban, triggering large-scale protests and chaos at airports around the country. Push back from the Courts led to the first ban being revoked, but two subsequent iterations have followed. Below are descriptions of certain significant lawsuits related to the Muslim ban, which the Brennan Center has played a leading role in challenging.
Zakzok v. Trump
Zakzok v. Trump is a lawsuit on behalf of six Muslim U.S. citizens and residents challenging the president’s third iteration of the Muslim ban. Their stories illustrate the severe ongoing harms suffered by American Muslims under this policy. Our co-counsel in the case are the Council on American-Islamic Relations, Paul, Weiss, Rifkind, Wharton & Garrison LLP, and Profeta & Eisenstein. Parallel suits, Int’l Refugee Assistance Project v. Trump and Iranian Alliances Across Borders v. Trump were heard and decided together by a federal district court in Maryland. The court issued a preliminary injunction, ruling that the plaintiffs had demonstrated a likelihood of success on the merits of their claim that the ban violates the Establishment Clause and the Immigration and Nationality Act. After a government appeal, the Fourth Circuit Court of Appeals upheld the injunction, finding that the ban was “unconstitutionally tainted with animus toward Islam.”
Two days after the Supreme Court ruled in Trump v. Hawaii, the Supreme Court also vacated the injunction in this consolidated suit, therefore allowing the ban to take effect as lower courts considered whether it was appropriate for litigation to continue. The case then went back to the district court for further proceedings in light of the ruling in Hawaii, which is described on this page.
On May 2nd 2019, the Maryland district court denied the government’s attempt to dismiss our claim that the ban violates the First Amendment of the Constitution. The court held that the case could proceed to be considered on the merits because we “put forward factual allegations sufficient [at this stage] to show that the Proclamation [ordering the ban] is not rationally related to the legitimate national security and information-sharing justifications identified in the Proclamation and therefore that it was motivated only by an illegitimate hostility to Muslims.”
The government appealed this decision, and arguments on this appeal were heard in the Fourth Circuit on January 28th 2020. We are currently waiting on a decision from the Fourth Circuit. If they rule in our favor, we will have the chance to demonstrate in court that the ban cannot reasonably be explained by anything other than anti-Muslim animus.
District Court of Maryland:
- District Court Complaint (10/6/17)
- Motion for Preliminary Injunction (10/6/17)
- Memorandum in Support of Plaintiffs’ Motion for PI (10/10/17)
- Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for PI (10/12/17)
- Reply Memorandum in Further Support of Plaintiffs’ Motion for PI (10/14/17)
- District Court Memorandum Opinion (10/17/17)
- District Court Order (10/17/17)
- Amended Complaint (11/2/18)
- Order (11/2/18)
- Opinion (11/2/18)
Fourth Circuit Court of Appeals:
- Motion of Defendants-Appellants for an Emergency Stay (10/17/17)
- IAAB and Zakzok Plaintiffs-Appellees’ Opposition to Motion for an Emergency Stay (10/21/17)
- Reply of Defendants-Appellants in Support of Motion for an Emergency Stay (10/30/17)
- First Cross Appeal Brief for Appellants (11/1/17)
- First Cross Appeal Brief for Appellees (11/1/17)
- Third Cross-Appeal Brief for Appellants (11/15/17)
- Reply Cross-Appeal Brief for IRAP Appellees (11/22/17)
- Order (2/15/2018)
- Opinion (2/15/2018)
- Supreme Court Petition for Writ of Certiorari (2/23/2018)
- Response Brief for Appellees (11/21/2019)
- Reply Brief for Apellants (12/17/2019)
Hawaii v. Trump
Hawaii v. Trump is a lawsuit on behalf of the State of Hawaii, the Muslim Association of Hawaii, Dr. Ismail Elshikh, and two John Doe plaintiffs challenging the various iterations of the Muslim ban.
Muslim Ban 2.0
On March 6, 2017, in response to federal court rulings enjoining Muslim ban 1.0, the Trump administration issued a second Executive order which instituted Muslim ban 2.0. On March 15, the Hawaii district court issued a nationwide injunction against the second version of the ban. This order was largely affirmed by the Ninth Circuit Court of Appeals on June 12, 2017. The government appealed to the Supreme Court, which agreed to hear Hawaii, along with sister lawsuit, Int’l Refugee Assistance Project v. Trump.
The Court prohibited the government from enforcing the ban against foreign nationals who possess a “bona fide relationship” with a person or entity in the US. But the government interpreted that ruling narrowly, issuing new guidance that would still ban “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, fiancés, and any other ‘extended’ family members” on the theory that they are not “close” family. In July 2017, the Hawaii district court ruled that this definition “represents the antithesis of common sense” and prevented the government from enforcing it. After a government appeal, the Ninth Circuit largely left the district court’s order relating to travel in place, while staying part of the order relating to refugees.
- The Brennan Center filed an amicus brief in the Ninth Circuit on behalf of four Muslim American citizens, each of whom have family living in countries targeted by the ban and who would suffer personal and immediate harm if the second version of the ban were to go into effect.
- The Brennan Center filed an amicus brief in the Supreme Court on behalf of seven Muslim American citizens and activists who have documented the ways the president’s second order precipitated increases in anti-Muslim discrimination, hate speech, and threats of violence.
After the administration issued a new version of the Muslim ban on September 24, 2017, the Supreme Court vacated the Ninth Circuit’s decision with instructions to dismiss as moot.
Muslim Ban 3.0
In October 2017, the lawsuit returned to Hawaii district court as a challenge to the President’s third iteration of the ban, where the court ruled that it violated the Immigration and Nationality Act and enjoined enforcement of core portions of the ban. The Ninth Circuit affirmed, but the Supreme Court had permitted Muslim Ban 3.0 to go into effect as appeals progressed. In January 2018, the Supreme Court agreed to hear the case.
- The Brennan Center filed an amicus brief in the Supreme Court supporting the plaintiffs on behalf of six U.S. Muslim citizens and residents who are prevented from reuniting with family members. These amici, named plaintiffs in the case Zakzok v. Trump, present personal experiences and facts on the record before the Fourth Circuit Court relevant to the Supreme Court’s consideration of whether the president’s third order complies with the Establishment Clause.
Trump v. Hawaii was argued in front of the Supreme Court on April 25, 2018, and its opinion was released on June 26, 2018. In a 5–4 decision, the Court reversed the grant of preliminary injunction, holding that plaintiffs did not show they were likely to succeed on the merits of their claims. In doing so, it rejected both statutory and constitutional challenges to the ban, a common theme in its analysis deference to the president in the realm of national security. Despite the litany of evidence that the ban was unconstitutionally motivated by anti-Muslim animus, the majority said it “[could] reasonably be understood to result from a justification independent of unconstitutional grounds,” accepting at face value the government’s contention that the policy came after a neutral worldwide review of countries’ capacities to support the vetting of their nationals.
The case now goes back to the district court for further proceedings, but the Supreme Court has significantly – and perhaps prohibitively – lifted the bar for a successful challenge. Practically, the ban is likely to stay in effect for the foreseeable future.
District Court of Hawaii:
- Complaint for Declaratory and Injunctive Relief
- First Amended Complaint
- Second Amended Complaint
- Plaintiffs’ Motion for Temporary Restraining Order
- Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for TRO
- Reply in Support of Plaintiffs’ Motion for TRO
- Order Granting Motion for TRO
- Defendants’ Motion for Clarification of TRO
- Plaintiffs’ Motion to Convert TRO to Preliminary Injunction
- Defendants’ Memorandum in Opposition to Plaintiffs’ Motion to Convert TRO to PI
- Reply in Support of Motion to Converto TRO to PI
- Order Granting Motion to Convert TRO to PI
- Emergency Motion to Clarify Scope of PI
- Defendants’ Opposition to Emergency Motion
- Reply in Support of Emergency Motion
- Order Denying Plaintiffs’ Emergency Motion
- Motion to Enforce or…Modify PI
- Defendants’ Opposition to Motion to Enforce or… Modify PI
- Order Granting in Part and Denying in Part Plaintiffs’ Motion to Enforce or… Modify PI
Ninth Circuit Court of Appeals:
- Motion of Defendants-Appellants for a Stay Pending Expedited Appeal
- Brief for Appellants
- Opposition to Motion of Defendants-Appellants for a Stay Pending Expedited Appeal
- Reply of Appellants in Support of Motion for a Stay Pending Expedited Appeal
- Brief of Amici Curiae Adam Soltani, Asma Elhuni, Hassan Shibly, and Basim Elkarra in Support of Plaintiffs-Appellees and Affirmance
- Plaintiffs’ Motion for Leave to File Third Amended Complaint
- Supreme Court Petition for Certiorari
- Government’s Brief
- Hawaii’s Brief
- Government’s Response Brief
- Brennan Center’s Amicus Brief
- Supreme Court Opinion
Brennan Center v. Department of State
In October, the Brennan Center filed a lawsuit under the Freedom of Information Act for records pertaining to the “worldwide review” the government alleges was conducted to identify which countries to target with a travel ban. In response to a court order, the government produced an index containing cursory descriptions of the documents withheld and the FOIA exemptions applicable to them, but the index provided was insufficiently detailed to evaluate whether the documents were properly withheld. After partially granting our summary judgment motion on March 29th, finding that the government had not carried its burden of demonstrating the requested documents fall within the claimed presidential communications privilege, the judge continues to review the materials in camera to determine if or to what in particular the privilege applies.
For more information on Brennan Center v. Department of State, visit here.