UPDATED @ 8:45 EST — With over 220 law professors signing on to support Minnesota and Washington, via amicus briefs filed this afternoon (and on the other side, the NRA, and an America First-related organization signing on to back the DoJ), the Ninth Circuit panel has now scheduled a hearing for 3 PM PST tomorrow. That hearing will be available by a live-streamed (video?) feed, from the appellate court itself. [I’ll set a link to that feed, in a new post, in the morning.]
On the substance, I continue to believe that Judge Robart’s nation-wide TRO will remain in place after that hearing tomorrow. That is, I expect that Mr. Trump’s Muslim Banning executive order will continue to be suspended — for the foreseeable future. A DACA executive order case (in the Fifith Circuit, out of Louisiana) that the Obama administration lost in 2015 proves quite instructive here — and that order had no earmarks of religious or national origin discrimination — both prohibited in an act of Congress in 1965 (as to entrance quotas) — an generally embedded in our Constitutional Bill of Rights for over two centuries, here. [End, updated portion.]
I’ll attach the full 49 page brief (about 1.1 MB) and exhibits here — but after arguing that a TRO is non-appealable at this stage (as I said over the weekend), the state makes a very muscular argument on the law (and Constitution) that the Ninth Circuit may outright finally rule against Mr. Trump right now, and permanently enjoin the order (regardless of procedual flaws in Mr. Trump’s so-called “appeal”).
Of course, in judicial parsimony, that will not happen — and ultimately it will be the Supremes that strike Mr. Trump’s purported Muslim Ban executive order. Consider:
. . . .[T]he Order denies entry to the United States of all persons from the seven countries, regardless of whether they have lived legally in this country for years.
Thus, our States’ residents from these countries who travel abroad will be deported if they attempt to re-enter this county, and those who remain will be forced to forego international travel to avoid that devastating result. This draconian restriction violates due process.
The Fifth Amendment protects all persons in the United States “from deprivation of life, liberty, or property without due process of law,” regardless of immigration status. Mathews v. Diaz, 426 U.S. 67, 69, 77 (1976); Zadvydas v. Davis, 533 U.S. 678, 693 (2001). A temporary absence from the country does not deprive longtime residents of their right to due process. See, e.g., Landon v. Plasencia, 459 U.S. 21, 33 (1982) (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.”) (internal citation omitted); Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953). . . .
The State has alleged and offered substantial evidence even before discovery that the Executive Order violates the Establishment Clause because its purpose and effect are to favor one religion. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). In Larson, the law at issue did not mention any religious denomination, but drew a distinction between religious groups based on facially neutral criteria. Id. at 231-32. The Court nonetheless applied strict scrutiny because the law was focused on religious entities and had the effect of favoring some. Id. at 246-47.
Larson applies here. The Order’s refugee provisions explicitly distinguish between members of religious faiths. President Trump has made clear that one purpose of the Order is to favor Christian refugees at the expense of Muslims. ECF 18 ¶ 53, Ex. 8. And the States have plausibly alleged that the countries chosen for the travel ban were chosen in part to disfavor Muslims. . . .
This case thus involves just the sort of discrimination among denominations that failed strict scrutiny in Larson, and must fail here.
Defendants claim that the Order “is neutral with respect to religion.” Motion at 19. “But it is . . . the duty of the courts to distinguish a sham secular purpose from a sincere one.” Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 864 (2005) (citing Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)).
Here, the sham of a secular purpose is exposed by both the language of the Order and Defendants’ expressions of anti-Muslim intent. See, e.g., McCreary, 545 U.S. at 866 (courts consider the “historical context” of the government act and “the specific sequence of events leading to [its] passage”). . . .
Now you know — off to a Western United States working day. [We now await the Trump administration response by 6 PM EST, tonight — but I’ll confidently say it is all over.]