The #NoMuslimBanEver National Week of Resistance was successful, and we’re grateful to everyone who participated. The week coincided with oral arguments in the Muslim Ban litigation in the 4th and 9th Circuits. More than 45 national and local groups participated in the #NoMuslimBanEver campaign, there was strong turnout at the #NoMuslimBanEver rallies in Richmond, VA and Seattle, Washington, and the hashtag #NoMuslimBanEver trended during our 5/9 Twitter Town hall.
Oral arguments in the 9th Circuit (Seattle, WA)
On May 15, a three-judge panel in the 9th Circuit heard oral arguments in the case Hawaii v. Trump. Judges Michael Hawkins, Ronald Gould and Richard Paez reviewed District Judge Derrick Watson’s nationwide preliminary injunction blocking President Trump’s revised Muslim Ban and refugee ban.
Acting Solicitor General Jeffrey Wall, arguing on behalf of the Trump administration, suggested that Supreme Court precedent should deter judges from second guessing “national security determinations that they’re sort of ill-equipped to do.” Judge Paez asked, “Would the Korematsu executive order pass muster under your argument?” and continued, “There was no reference to the Japanese in that executive order but look what happened.”
Wall also asked the judges not to begin a “wide ranging inquiry into subjective motivation” including Trump’s previous comments on Muslims because “the (executive) order on its face doesn’t have anything to do with religion and in operation doesn’t distinguish on the basis of religion.” Neal Katyal, a former Obama administration solicitor general representing the state of Hawaii, countered that Trump had never disavowed his previous comments and until the week prior had a press release on his campaign site calling for a “complete shutdown of Muslims.” Katyal noted that the executive order was rooted in discrimination and emphasized that “if you rule for him, you defer to the President in a way that history teaches us is very dangerous.” (CNN, The Guardian)
Our Twitter Town Hall on Islamophobia and Immigrants was held that same day and anchored by Avideh Moussavian (NILC), Ben Ndugga-Kabuye (BAJI), Lindsay Schubiner (Center for New Community), Patrice Lawrence (UndocuBlack) and Deepa Iyer (Center for Social Inclusion). The discussion explored the intersection of Islamophobia, anti-immigrant prejudice and anti-black racism.
Oral arguments in the 4th Circuit (Richmond, VA)
On May 8, an en-banc panel in the 4th Circuit reviewed the decision of Maryland District Court Judge Theodore Chuang, who held that the Muslim ban was likely unconstitutional and concluded that “the history of public statements [by President Trump] continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban.” Judge Chuang blocked the Muslim Ban, but left intact the refugee ban.
Jeffrey Wall argued that the revised ban incorporated the concerns raised by judges in the Muslim Ban 1.0 litigation and noted that Trump “made it clear he was not talking about Muslims all over the world, that’s why it’s not a Muslim ban.” Omar C. Jadwat, a lawyer with the ACLU representing people and groups challenging the order, stated that the ban does not serve a valid national security rationale. He noted that the targeted countries are “not the list of countries you come up with” when determining those that pose the biggest threats to the U.S. (CNN, The Atlantic)
Our Twitter Town Hall on the Muslim/Refugee Ban was held the following day and anchored by Abed Ayoub (ADC), Asha Noor (CAIR-MI), Naureen Shah (Amnesty International) and Deepa Iyer (Center for Social Inclusion). The discussion explored the litigation, those impacted by the Muslim Ban and refugee ban, and local and national resistance efforts.
If Trump loses in either the Fourth or Ninth Circuits, he would be unable to lawfully enforce the Executive Order and would have to appeal to the U.S. Supreme Court.
According to Steve Vladeck, a CNN legal analyst and professor of law at the University of Texas School of Law, the real question will be “whether the two courts come out the same way. This issue may be bound for the Supreme Court no matter what, but it will certainly be heard by the justices if these lower courts disagree.”