On Thursday of last week, the 4th Circuit Court of Appeals halted the enforcement of President Trump’s second attempt at a Middle East-focused travel ban. Earlier in May, the Trump administration appealed a lower court’s holding that it was an unconstitutional violation of the Establishment Clause of the First Amendment. The 4th Circuit Court refused to grant the Trump administration relief and upheld that decision.
Shortly after, the Department of Justice, tasked with defending the Muslim Ban, promised to appeal the decision to the Supreme Court. This decision was the first on a Circuit level for this Executive Order, but not the first for similar attempts by the Trump administration to control immigration policy.
The administration’s first attempt at such a policy entitled Executive Order (EO) 13769–“Protecting the Nation from Foreign Terrorist Entry into the United States”–elicited outrage and confusion when it was implemented without warning or guidance on January 27. This EO, one of Trump’s first while in office, undoubtedly demonstrated the new administration’s misunderstanding of the complexities surrounding immigration policy.
Relying on the President’s “unfettered” right to control immigration, it sought to curb all travelers and refugees from seven majority Muslim nations in the Middle East. As evidence of the short-sighted nature of the plan, the original document failed to carve out green card holders and those with legal status in the United States. It was preliminarily enjoined nationwide by the 9th Circuit Court of Appeals, so the administration went back to the drawing board, reportedly enlisting counsel to draft something able to withstand similar legal challenges.
The result was Executive Order 13780, which was poised to take effect on March 16, 2017. Unfortunately for him, Trump had already put his cards on the table. He had publicly called the new EO a “watered-down version” of the first one, erasing any doubt that the Trump administration had shamelessly colored its’ executive action with intolerance. As evidenced in multiple courts since that fateful January day, there would no longer be any question about the motivations of similar actions. Accordingly, constitutionality issues endured, and the EO was put on hold before it could be implemented.
Trump’s audacious attempt to implement these kinds of measures is not surprising; his presidential campaign was rife with calls for a “Muslim Ban” and promises to clamp down on all types of immigration. Indeed, many courts pointed to these public statements as evidence of animus.
In Thursday’s ruling, the 4th Circuit agreed that allowing implementation of the new ban would cause “irreparable harm to individuals across [the United States].” The Muslim Ban, which sought to halt travel from certain nations for 90 days while the government contemplated tougher vetting procedures, also sought to reduce the annual number of refugees by more than half.
The government argued that the President’s unfettered authority to restrict entry of non-citizens precluded any challenge to the ban. On the other side, many interest groups and individuals with ties to the target countries argued that the ban amounted to an unconstitutional violation of the Establishment Clause; allowing the government to exhibit a preference for one religion over another. The 4th Circuit agreed with the plaintiffs, explaining that “the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.”
After the 4th Circuit’s ruling came down, Attorney General Jeff Sessions immediately announced his intent to appeal the decision to the Supreme Court. The Department of Justice has 90 days in which it may ask the Supreme Court to review the decision. Already, government lawyers have asked for a stay of proceedings in other courts pending the decision of the Supreme Court. Since the Court’s term is nearing this year’s end, any review would have to be quick; nonetheless, the high-profile case is likely to warrant extra attention. Many of the proceedings on the travel ban thus far have also taken place on an expedited timeline.
Despite a growing conservative wing, the travel ban faces an uphill battle at the Supreme Court, in particular, because of the subject matter at the heart of this case. Many members of the “conservative wing” of the Court have voiced skepticism about broad actions by the federal government and strongly support religious liberties. By the time Justice Gorsuch’s confirmation hearings were held earlier this year, the travel ban was already expected to be a hot-button issue in the upcoming term of the Supreme Court. When he was asked about a comment that he was the travel ban’s best hope on the Supreme Court, Gorsuch called the comment “silly,” and reiterated his intention to apply the law “faithfully and fearlessly.”
Justice Clarence Thomas, in 2004’s Elk Grove Unified School District v. Newdow, argued in his concurring opinion that the Establishment Clause “is best understood as a federalism provision – it protects state establishments from federal interference but does not protect any individual right.” Under his judgment, although the First Amendment precludes Congress from making a law respecting an establishment of religion, or prohibiting the free exercise thereof, actions covered by states and localities may be immune to Establishment Clause challenges. Applying this logic to the 4th Circuit’s case, such broad and overarching religious preference by the Federal government, applied as a threshold issue regarding entry to the country, could go too far for Justice Thomas.
Justice Kennedy has argued to apply a “coercion test” to possible Establishment Clause violations, to determine if the government action is coercive. If the action is considered “passive,” it is less likely to be problematic. He has also been known to consider animus in his considerations; in the context of the travel ban, in which multiple courts have pointed to Trump’s improper motivations in applying the ban, such consideration is not likely to weigh in the government’s favor.
It is, of course, impossible to predict how the Supreme Court will treat this complex, high-stakes matter, but it is clear that the view of the Justices on the Establishment Clause is overwhelmingly nuanced. Although the consensus among lower courts may suggest it could be difficult to weigh in favor of the ban, the Supreme Court certainly has the ability to find otherwise.