The Fourth Circuit ruled earlier this month that the Trump Administration’s third attempt at an immigration and travel ban, imposed on eight predominately Muslim countries, was likely to violate the Establishment Clause. On September 24, 2017, President Trump issued Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (the “Proclamation”). The Proclamation was the third iteration of the “travel ban” promised by Trump while he was a presidential candidate. The most recent decision by the Fourth Circuit is consistent with its earlier decision that the second iteration of the travel ban likely violates the Establishment Clause (prior post here).
The Proclamation was based on a report compiled by the Department of Homeland Security (the “Department”). The Department reviewed information sharing and other factors on a country-by-country basis and assessed whether each country supported the United States’ ability to confirm the identity of individuals seeking entry into the United States. This report provided rationale for the Proclamation, but was not made available for judicial review. Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen were included in the Proclamation’s travel ban after the Department found their support to the United States was inadequate. Somalia did not meet the baseline criteria of inadequacy, but was still added to the ban list because of the “government’s inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory….” Iraq’s support to the United States was found inadequate, but Iraq was not included on the Proclamation’s list because of “the close cooperative relationship between the United States and the democratically elected government of Iraq….”
The Court ultimately found that the plaintiffs challenging the Proclamation had a strong likelihood of success on the merits of their Establishment Clause claim. Howard Friedman’s Religion Clause Blog, quotes the majority opinion, which rejected the government’s basis for the Proclamation:
[H]ere the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2 [travel ban 1 and 2], addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2…..
The Court therefore concluded that the Proclamation lacked a secular purpose and that “[t]o the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective.” The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump, (4th Cir. en banc, Feb. 15, 2018), is available here.