Ramadan Begins Tonight--Trump Issues Greetings

The Muslim holy month of Ramadan begins this evening.  President Donald Trump today released a statement (full text) wishing all Muslims a joyful Ramadan. He said in part:

During this month of fasting from dawn to dusk, many Muslims in America and around the world will find meaning and inspiration in acts of charity and meditation that strengthen our communities.  At its core, the spirit of Ramadan strengthens awareness of our shared obligation to reject violence, to pursue peace, and to give to those in need who are suffering from poverty or conflict.

This year, the holiday begins as the world mourns the innocent victims of barbaric terrorist attacks in the United Kingdom and Egypt, acts of depravity that are directly contrary to the spirit of Ramadan.  Such acts only steel our resolve to defeat the terrorists and their perverted ideology.

Also, reflecting an increase in anti-Muslim activity around the country, the organization Muslim Advocates issued an arson alert to mosques throughout the United Sates.

4th Circuit En Banc Upholds Preliminary Injunction Against Trump's Second Travel Ban Executive Order

Today the U.S. 4th Circuit Court of Appeals sitting en banc upheld (with a minor exception) the nationwide preliminary injunction entered by a Maryland federal district court barring enforcement of a major provision of President Trump's second travel ban Executive Order.  By a 10-3 vote, in a series of opinions spanning 205 pages, the Court of Appeals in International Refugee Assistance Project v. Trump, (4th Cir., May 25, 2017), affirmed the award of a preliminary injunction against enforcement of Section 2(c) of the Executive Order which imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. The Court however-- in a step that has little practical significance-- limited the injunction to various cabinet officers and departments and their officers, agents and employees, but lifted the injunction against to the President himself.

The majority opinion, written by Chief Judge Gregory (joined in full by 6 other judges and in part by 2 more (with one judge joining only in the judgment), focused on the Establishment Clause.  The Court said in part:

The question for this Court, distilled to its essential form, is whether the Constitution ... remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.

Judge Keenan joined by Judge Thacker filed a concurring opinion indicating that they would also uphold the preliminary injunction because the President failed to make adequate finding as required under 8 U.S.C. § 1182(f) before he can exclude a group of aliens that entry of that group of aliens would be detrimental to the interests of the United States.

Judge Wynn filed a concurring opinion indicating that he would also find that the Executive Order exceeded the President's authority under the Immigration Act.  Judge Thacker also filed a concurring opinion, stating that he concurred even though he would not consider statements made by candidate Trump before he took the oath of office as relevant.

Judges Niemeyer, Shedd and Agee, each writing a dissenting opinion concurred in by the others. The opinions, among other things, objected to the consideration of campaign statements "to recast a later-issued executive order," and argued that plaintiffs lacked standing.

The Washington Post reporting on the decision notes:

All of the judges in the majority were placed on the court by Democratic presidents and the three dissenting judges ... were all nominated to the bench by Republican presidents.

UPDATE: Attorney General Jeff Sessions announced on Thursday that the government will seek review of the decision in the U.S. Supreme Court.

Trump In Israel Calls For End To Sectarian Conflict In Middle East

During his trip to the Middle East, yesterday President Trump delivered an address (full text) at the Israel Museum in which he framed a call for a political settlement in religious terms.  The President said in part:

Today, gathered with friends, I call upon all people -- Jews, Christians, Muslims, and every faith, every tribe, every creed -- to draw inspiration from this ancient city, to set aside our sectarian differences, to overcome oppression and hatred, and to give all children the freedom and hope and dignity written into our souls. 

Earlier this week, I spoke at a very historic summit in Saudi Arabia.  I was hosted by King Salman -- a very wise man.  There, I urged our friends in the Muslim world to join us in creating stability, safety and security.  And I was deeply encouraged by the desire of many leaders to join us in cooperation toward these shared and vital goals.  

Conflict cannot continue forever.  The only question is when nations will decide that they have had enough -- enough bloodshed, enough killing.  That historic summit represents a new opportunity for people throughout the Middle East to overcome sectarian and religious divisions, to extinguish the fires of extremism, and to find common ground and shared responsibility in making the future of this region so much better than it is right now.

Full Transcript of President Trump's Speech To Leaders of Muslim Nations

President Donald Trump today delivered a highly-anticipated speech in Riyadh, Saudi Arabia to leaders of Mulim nations. Here is the full transcript of the speech in which he said in part:

This is not a battle between different faiths, different sects, or different civilizations. This is a battle between barbaric criminals who seek to obliterate human life, and decent people of all religions who seek to protect it. This is a battle between Good and Evil.

When we see the scenes of destruction in the wake of terror, we see no signs that those murdered were Jewish or Christian, Shia or Sunni. When we look upon the streams of innocent blood soaked into the ancient ground, we cannot see the faith or sect or tribe of the victims – we see only that they were Children of God whose deaths are an insult to all that is holy.

But we can only overcome this evil if the forces of good are united and strong – and if everyone in this room does their fair share and fulfills their part of the burden. Terrorism has spread across the world. But the path to peace begins right here, on this ancient soil, in this sacred land. America is prepared to stand with you – in pursuit of shared interests and common security.

But the nations of the Middle East cannot wait for American power to crush this enemy for them. The nations of the Middle East will have to decide what kind of future they want for themselves, for their countries, and for their children.

It is a choice between two futures – and it is a choice America CANNOT make for you. A better future is only possible if your nations drive out the terrorists and extremists. Drive. Them. Out.

DRIVE THEM OUT of your places of worship. DRIVE THEM OUT of your communities. DRIVE THEM OUT of your holy land, and DRIVE THEM OUT OF THIS EARTH.

Here is the Washington Post's coverage of the speech.

9th Circuit Hears Oral Arguments On Second Trump Travel Ban Executive Order

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in State of Hawaii v. Trump, (Docket No. 17-15589).  In the case, a Hawaii federal district court issued a nationwide temporary injunction against enforcement of key portions of  President Trump's second "travel ban" Executive Order. (See prior posting.) As reported by the New York Times, at issue in the arguments are whether the Executive Order can be considered a "Muslim ban" that violates the Establishment Clause.

4th Circuit En Banc Hears Oral Arguments On Trump's Second Travel Ban

Today the U.S. 4th Circuit Court of appeals sitting en banc  (13 judges) heard oral arguments (audio of oral arguments from C-Span) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court granted a nationwide preliminary injunction barring enforcement of Section 2(c) of President Trump's second travel ban executive order. That section of the Executive Order imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The district court concluded that there is a likelihood that the travel ban violates the Establishment Clause. (See prior posting.) Washington Post reports on the oral arguments, saying in part:

... [J]udge after judge during an extraordinary two-hour hearing asked Acting Solicitor General Jeffrey B. Wall about statements during the presidential campaign and afterward in which Trump talked about a Muslim ban.

Wall said the order for a 90-day ban on foreign travelers from certain countries was simply to protect the country by increasing the vetting of those who are potentially dangerous. That is not only within the president’s authority, Wall said, it is his responsibility.

But Judge Barbara Milano Keenan said that could mean a candidate for president could call for a Muslim ban every day for a year, enact a cleverly worded plan that accomplished that on his first day in office, and have courts ignore whether that was his real purpose.

Under intense questioning, Wall acknowledged it could violate the Constitution to single out a religion for adverse treatment, but said Trump’s revised executive order was neutral.

FFRF Sues To Enjoin Executive Order's Directions On Johnson Amendment

Yesterday the Freedom From Religion Foundation filed suit in a Wisconsin federal district court challenging President Trump's Executive Order on Free Speech and Religious Liberty.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Trump, (WD WI, filed 5/4/2017) seeks an order declaring that the Executive Order violates the Establishment Clause and the equal protection element of the 5th Amendment by providing preferential treatment to churches, and that it exceeds the President's powers under Article II. The complaint also asks for an injunction preventing the Commissioner of Internal Revenue from implementing the Executive Order. The complaint quotes at length Presidential statements, particularly to Evangelical Christian audiences, promising to overturn the Johnson Amendment, and then contends:

The EO, with the President’s annotated interpretation and construction, makes clear that a relaxed and differential standard of enforcement of § 501(c)(3)’ electioneering restrictions shall be applied to churches and religious officials.

An FFRF press release announced the filing of the lawsuit. The suit came as the ACLU announced it would not sue over the Executive Order. (See prior posting).  [Thanks to Norman Buck for the lead.] 

ACLU Will Not Sue Over Religious Freedom Executive Order

The ACLU announced yesterday that after careful review of President Trump's new Executive Order on Free Speech and Religious Liberty, it has decided not to file suit. It said in part:

Today’s executive order signing was an elaborate photo-op with no discernible policy outcome. After careful review of the order’s text we have determined that the order does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process. The order portends but does not yet do harm to the provision of reproductive health services.

President Trump’s prior assertion that he wished to ‘totally destroy’ the Johnson Amendment with this order has proven to be a textbook case of ‘fake news.’

Trump Issues Day of Prayer Proclamation and Religious Liberty Executive Order

Today President Trump issued a Proclamation (full text) designating today as National Day of Prayer. It reads in part:

We are also reminded and reaffirm that all human beings have the right, not only to pray and worship according to their consciences, but to practice their faith in their homes, schools, charities, and businesses    in private and in the public square    free from government coercion, discrimination, or persecution.  Religion is not merely an intellectual exercise, but also a practical one that demands action in the world.  Even the many prisoners around the world who are persecuted for their faith can pray privately in their cells.  But our Constitution demands more:  the freedom to practice one's faith publicly.

The President also marked the day by issuing an "Executive Order Promoting Free Speech and Religious Liberty" (full text) setting out four policy initiatives:

Section 1.... It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.....

Sec. 2....  All executive departments and agencies ... shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury....

Sec. 3.... The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.

Sec. 4....  In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.

Trump Declares May As Jewish American Heritage Month

The Times of Israel and JTA both report that on Friday President Trump issued a Proclamation designating May as Jewish American Heritage Month.  Similar Proclamations have been issued by presidents since 2006.  The Proclamation, which specifically mentions Trump's daughter Ivanka, his son-in-law Jared and his grandchildren all of whom are Jewish, reads in part:

During Jewish American Heritage Month, we celebrate our nation’s strong American Jewish heritage, rooted in the ancient faith and traditions of the Jewish people. The small band of Dutch Jews who first immigrated in 1654, seeking refuge and religious liberty, brought with them their families, their religion, and their cherished customs, which they have passed on from generation to generation.

When the full text of the Proclamation becomes available on the White House website, I will link to it.

UPDATE: Here is the full text of the Proclamation.

Presidential Proclamations On Yom HaShoah and Meds Yeghern

Yesterday, which was Yom HaShoah, President Trump signed a Proclamation (full text):

ask[ing]  the people of the United States to observe the Days of Remembrance of Victims of the Holocaust, April 23 through April 30, 2017, and the solemn anniversary of the liberation of Nazi death camps, with appropriate study, prayers and commemoration, and to honor the memory of the victims of the Holocaust and Nazi persecution by internalizing the lessons of this atrocity so that it is never repeated.

The text of the Proclamation has been posted on Trump's Facebook page, but has not yet appeared on the White House website.

Yesterday the President also signed a Proclamation (full text) marking Armenian Remembrance Day. As pointed out by Hurriyet, consistent with past practice the Proclamation uses the Armenian term Meds Yeghern (Great Calamity) and avoids referring to the atrocities as a "genocide."

UPDATE: And here is the full text of President Trump's speech on Tuesday at the United States Holocaust Memorial Museum National Days of Remembrance.

Trump Will Host White House Passover Seder

Times of Israel reports that President Donald Trump will host a White House Passover Seder tonight, continuing a tradition begun by President Barack Obama in 2009.

Hawaii Federal District Court Converts TRO Against Travel Ban To Preliminary Injunction

Yesterday a Hawaii federal district court granted the state of Hawaii's motion to convert its prior temporary restraining order against President Trump's second travel ban Executive Order into a temporary injunction. In State of Hawai'i v. Trump, (D HI, March 29, 2017), the court concluded that "Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim...."  The court said in part:

The Court determined in its TRO that the preliminary evidence demonstrates the Executive Order’s failure to satisfy Lemon’s first test.... As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination.

Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order.... No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door.

Virginia Federal Court OK's Trump's Second Travel Ban EO

While federal district courts in Hawaii and Maryland have issued nationwide injunctions barring enforcement of President Trump's second travel ban Executive Order finding that it violates the Establishment Clause, a Virginia federal district court has now reached an opposite conclusion.  In Sarsour v. Trump, (ED VA, Marc 24, 2017), the court said in part:

Given the revisions in EO-2, the question is now whether the President's past statements continue to fatally infect what is facially a lawful exercise of presidential authority. In that regard, the Supreme Court has held that "past actions [do not] forever taint any effort on [the government's] part to deal with the subject matter. . . ." This Court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent. And while the President and his advisors have continued to make statements following the issuance of EO-1 that have characterized or anticipated the nature of EO-2, the Court cannot conclude for the purposes of the Motion that these statements, together with the President's past statements, have effectively disqualified him from exercising his lawful presidential authority under Section 1182(f). In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President's statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose.

The Hill reports on the decision.

Another Suit Challenges Trump's Latest Travel Ban Executive Order

Last week, another suit was filed challenging President Trump's latest travel ban Executive Order on, among others, Establishment Clause and equal protection grounds.  The suit was brought by the largest organization of Shi’a Muslims in the United States,as well as by a Yemeni couple living in the United States. The complaint (full text) in Universal Muslim Association of America, Inc. v. Trump, (D DC, filed 3/23/2017), seeks a nationwide injunction barring the government from enforcing the sections of the Executive Order that temporarily bar or make more difficult travel into the U.S. by nationals of certain majority-Muslim nations.  As explained by a press release from Americans United:

There are two sets of plaintiffs in the case. They include the Universal Muslim Association of America (UMAA), the country’s largest organization of Shi’a Muslims, whose members are being deprived of religious learning, worship and services because their religious scholars almost exclusively hail from Iran, Iraq and Syria.  One of their scholars has already been denied entry under the first Muslim ban executive order, and he and other scholars are likely to be denied entry again.  The second set of plaintiffs are John and Jane Doe -- parents blocked from bringing their children home from Yemen.

Another Court Bars Enforcement of Trump's Second Travel Ban

As reported by Bloomberg Politics, yesterday a Maryland federal district court became the second court to bar enforcement of part of President Trump's second "travel ban" Executive Order. In International Refugee Assistance Project v. Trump, (D MD, March 16, 2017), the court issued a nationwide preliminary injunction barring enforcement of Section 2(c) of the Second Executive Order. That section imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The court said in part:

The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.

5 Judges In 9th Circuit Would Uphold Trump's First Travel Ban

Last month, a 3-judge panel of the U.S. 9th Circuit Court of Appeals refused to stay the Washington federal district court's temporary restraining order against enforcement of President Trump's first "travel ban" Executive Order. (See prior posting.)  On March 8, after the President issued a narrower and more focused new Executive Order, a 3-judge panel of the 9th Circuit granted the government's unopposed motion to dismiss its underlying appeal of the district court's decision, leaving the case pending at the district court level. A judge of the 9th Circuit then called for a vote on en banc reconsideration of the order to dismiss in order to vacate the panel's original opinion upholding the district court's stay. In State of Washington v. Trump, (9th Cir., March 15, 2017), reconsideration failed to receive a majority vote.  However five judges (Judges Bybee, Kozinski, Callahan, Bea, and Ikuta) filed a dissenting opinion, criticizing the panel's original rationale for upholding the stay.  The dissenters focused on the Supreme Court's decision in Kleindienst v. Mandel (1972) relating to the deference which courts should give to executive action affecting aliens who are outside the U.S.  CNN points out that the five dissenters were all appointed by Republican presidents.

Hawaii Federal Court Bars Enforcement of Key Provisions of Second Travel Ban

Today a Hawaii federal district court issued a nationwide temporary restraining order prohibiting enforcement of Section 2  (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees) of President Trump's second "travel ban" Executive Order.  The Executive Order was scheduled to go into effect tomorrow. (See prior posting.)  The lawsuit was brought by the state of Hawaii and by the Imam of the Muslim Association of Hawai‘i.  In State of Hawaii v. Trump, (D HI, March 15, 2017), a Hawaii federal district court concluded that:

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.

The court explained its conclusion in part as follows:

The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.... The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.”... The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry.

According to Hawaii News Now,  President Trump reacted to the ruling during a rally in Nashville, saying in part:

This is, in the opinion of many, an unprecedented judicial overreach. This ruling makes us look weak, which by the way, we no longer are, believe me.  We're going to fight this terrible ruling. We're going to fight this case as far as it needs to go, including all the way up to the Supreme Court.

Washington Post reports on today's decision. Josh Blackman's Blog has a lengthy post reviewing cases on the application of the Establishment Clause to immigration law matters and reaching a different conclusion than did the Hawaii court about the Executive Order's constitutionality..

Trump Issues More Focused Travel Ban and Refugee Restrictions

As reported by the Washington Post, yesterday President Trump issued a narrower and more focused Executive Order (full text) imposing a 90-day suspension of entry into the United States by nationals of six Muslim-majority nations-- Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraqi nationals are no long included in the travel ban, though they may be subjected to increased scrutiny.  The Order justifies this list of nations:

Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States.... 

This new Order exempts, among others, lawful permanent residents of the U.S. and dual nationals traveling on other country passports.  The Order comes as the President's broader Order issued in January remains tied up in the courts.  Yesterday's Order begins with a lengthy section setting out justifications for the earlier Order.  Section 1.(b)(iv) lays out the Administration's argument against charges that the earlier Order favored Christian refugees over others:

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP in light of their particular challenges and circumstances.

Like the earlier Order, the new one suspends refugee entry of 120 days and limits the number of refugees in fiscal 2017 to 50,000. However, in the new Order Syrian refugees are not singled out for a longer suspension.

House Task Force On Anti-Semitism Sends Suggestions To Trump

Yesterday the eight co-chairs of the U.S. House of Representatives Bipartisan Task Force for Combating Anti-Semitism sent a letter (full text) to President Trump suggesting three specific steps to improve the government's response to anti-Semitism:

Ensure that the Civil Rights Division of the Department of Justice has access to the necessary resources and information to fully investigate alleged anti-Semitic crimes and ensure the perpetrators are brought to justice.

Ensure that a mechanism exists to coordinate inter-agency detection of and response to new anti-Semitic crimes.

Evaluate growing anti-Semitism online, particularly incitement to violence, and devise a comprehensive policy response.

Times of Israel reports on the letter.