Tackling Trump’s Muslim Travel Ban
One day after the January 20, 2017, inauguration of Donald J. Trump as president of the United States, millions of people took to the streets in major U.S. cities, across Europe, and the world to protest what they viewed as a new right-wing, populist craze spearheaded by the new president. Members of the NLG Massachusetts Chapter (NLG) were on hand in Boston as protesters or Legal Observers, and had already given “Know Your Rights” clinics to help the grass roots resistance.
The fear of religious persecution expressed by protesters world-wide after the U.S. election and Inauguration Day were well founded: making good on a constitutionally-dangerous campaign pledge, President Trump issued a travel ban on January 27, 2017, in the form of an Executive Order banning for 90 days visitors to the USA from seven predominantly-Muslim countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.) The president claimed this measure was to ensure “we are not admitting into our country the very threats our soldiers are fighting overseas.”
Something had to be done, and fast. As thousands of protestors and lawyers, including NLG-Massachusetts members, gathered at Logan International Airport, Boston-based attorney Susan Church, long-time NLG member and chair of the American Immigration Lawyers Association (AILA), went there to find people who needed help – and a Plaintiff to sue the President of the United States of America.
While the search for a suitable Plaintiff was on, Boston attorneys Kerry Doyle and Matt Segal were busy drafting the complaint for a stay of the Executive Order from their offices and homes. Once the Plaintiff was chosen on Saturday evening, Church said she called the emergency number for the USDC-Boston and reached Magistrate Judge Judith Dein who, at that time, was at the Shubert Theater in Boston.
Magistrate Judge Dein told Church to meet her at “9:30″ at the USDC-Boston, Church recalled, adding, “I wasn’t sure whether that was 9:30 the next morning – did she mean Sunday? – or 9:30 AM Monday morning; I was concerned Magistrate Judge Dein might have meant Monday – after which the irreparable harm needed for the stay would be moot.” Church then asked “is the court going to be open…” to which Judge Dein responded “I am going to get it open.”
Church argued the case with lawyers Matt Segal, Kerry Doyle, and Heather Yountz. Judge Allison Burroughs joined the hearing and presided over it with Magistrate Judge Dein. Around 1:51a.m. the pair of judges issued a temporary stay of Trump’s EO and instructed the Federal Marshalls to call U.S. Customs and Border Patrol at Logan and admit to the USA those people excluded by the ban. Images of visitors from the seven predominantly Muslim countries buzzed across social media. No longer barred from entering the U.S., they were pictured pushing luggage carts, hugging greeters, and shedding tears.
“It was amazing and extremely gratifying to witness first hand the power of the Judiciary at work to check the Executive where issues of Federal constitutional rights were at stake, said Church, adding: “It’s the kind of case I went to law school for and I am incredibly honored to have been on the legal team that struck the first blow against the Muslim ban.”
On March 6, 2017, Trump issued a new version of his earlier ban which, among other changes, omitted prohibiting people from Iraq, a nation where the U.S. and its allies were then, and are now, engaged in bloody battles against ISIS.
Once again, with the new travel ban the White House failed to make a reasonable or persuasive case for barring people from the six nations. The Associated Press released a leaked memo revealing that intelligence experts at the Department of Homeland Security found that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” The second Muslim ban was stayed by USDC Judge Derrick Watson in Hawaii on March 15, 2017. Staying parts of the Executive Order (EO), Judge Theodore D. Chuang of the Federal District Court in Maryland also rejected Trump’s rationale for issuing the second ban.
Constitutional challenges to Trump’s second temporary 90-day travel ban against Muslims from the six nations went before two U.S. Appeals Courts in May. Sitting en banc, the 4th U.S. Circuit Court of Appeals heard arguments on May 8 in which the President argued to the Richmond, Virginia-based Court that the ban was issued to protect national security. A week later, on May 15, a panel of the 9th U.S. Circuit Court heard arguments on the constitutionality of the second travel ban, which also was stayed by Hawaii U.S. District Court, Derrick K. Watson. Judge Watson wrote: “A reasonable, objective observer – enlightened by 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.”
The fight continues.
- Elaine Whitfield Sharp