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Muslim Ban Litigation

The Brennan Center has played a leading role in legal challenges to the Muslim ban.

Last Updated: February 3, 2020
Published: April 25, 2018

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:

Fourth Circuit Court of Appeals:


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:

Ninth Circuit Court of Appeals: 



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.