In
International Refugee Assistance Project v. Trump, (D MD, May 2, 2019), a Maryland federal district court, in a case
on remand from the U.S. Supreme Court and the 4th Circuit, refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. The Supreme Court's remand was ordered in light of its rejection of an Establishment Clause challenge in a parallel case (
Hawaii II). In its latest decision, the district court said, however:
Notably, at no point in Hawaii II did the Supreme Court state that its conclusion that the Proclamation would satisfy rational basis review, based on the record before it and in the context of a motion for a preliminary injunction, required dismissal of the Establishment Clause claim in either that case or the present case. Indeed, two Justices, including one in the majority, identified the possibility that constitutional claims would proceed.
Setting out it reasons for allowing the constitutional challenges to now move ahead, the district court said in part:
Plaintiffs have provided detailed allegations for why the Proclamation is not rationally related to its stated national security interests and is instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims.
First, the Complaints provide detailed allegations of statements by the President exhibiting religious animus toward Muslims and articulating a desire to ban Muslims from entering the United States, including his statement as a presidential candidate that he planned to institute "a total and complete shutdown of Muslims entering the United States" and numerous later statements reaffirming this position...
Contrary to the Government's claim during the hearing on the Motion, Hawaii II does not instruct courts to disregard these statements or any public pronouncements of a President, nor does it hold that the subjective intent of the President and his advisors in formulating and issuing the Proclamation is irrelevant. Rather, the Supreme Court specifically stated that this evidence "may be considered," so long as the "authority of the Presidency itself' is given its due....
