A federal appeals court heard oral arguments late Tuesday to determine whether to lift a nationwide injunction against President Donald Trump’s travel ban against citizens of seven majority-Muslim countries.
The hearing, conducted by telephone, contained high drama, as one of Trump’s signature policies is challenged by two states and backed by numerous advocacy groups. Trump has also repeatedly attacked the federal judge who blocked the ruling last Friday, CNN reported.
The Trump administration says the courts have improperly inserted itself into the national security sphere.
“This is a traditional national security judgment that is assigned to the political branches and the president,” August Flentje, special counsel to the assistant attorney general at the Justice Department, told the panel.
Flentje faced skeptical questioning from the judges, who pressed the DOJ lawyer about what evidence the government is presenting that the travel ban is necessary.
Judge Michelle T. Friedland immediately asked if the government could point to any evidence “connecting these countries with terrorism.”
And Judge Richard R. Clifton seemed sympathetic to the fact that the states have the standing, or ability, to bring the suit against the administration.
Clifton called the government’s argument “abstract,” noting there are existing procedures to vet individuals for visas.
The court is expected to issue a decision this week.
Trump’s ban on travel for Muslims has sparked protests and cries of injustice throughout the country, even right here in the District.
However, it’s also left some wondering just how should they proceed, particularly if they’re experiencing difficulties with passports, visas and other documents.
“I have worked with immigrants and refugees for five years in an ESL program at United Neighborhood Centers and the connection I would offer students was the Community Justice Project in Hazleton,” said Nicole Guzenski, an ESL facilitator at Northampton Community College in Bethlehem, Pennsylvania.
Ismael Mahmud, who attends the Islamic Center, said the ban is a poor representation of what America is.
“It’s not reflective of the welcoming, hospitable and all-inclusive ideals that this country was founded on,” said Mahmud, 39. “I have concerns. We all have concerns, but it’s truly a sad day, an unbelievable day in that it now seems that America has a dictator who can do as he pleases and attack a religion so freely without repercussions, without anyone in government to stand up and say that it’s wrong.”
Last week, Trump effectively closed the country’s borders to refugees, ordering that immigrants from several predominantly Muslim countries be denied entry into the United States.
He ordered that Christians and others from minority religions be granted priority over Muslims.
“We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas,” Trump said. “We don’t want them here.”
And as many continue to decry the travel ban as an assault specifically on Muslims, at press time, Trump was set to unleash another executive order that further angered the masses.
A four-page draft order first published by The Nation website, a copy of which is currently circulating among federal staff and advocacy organizations, construes religious organizations so broadly that it covers “any organization, including closely held for-profit corporations,” and protects “religious freedom” in every walk of life; including “when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with federal, state or local governments.”
The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act.
Language in the draft document specifically protects the tax-exempt status of any organization that “believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”
The breadth of the draft order, which legal experts described as “sweeping” and “staggering,” may exceed the authority of the executive branch if enacted.
It also, by extending some of its protections to one particular set of religious beliefs, would risk violating the Establishment Clause of the First Amendment to the Constitution.
“This executive order would appear to require agencies to provide extensive exemptions from a staggering number of federal laws — without regard to whether such laws substantially burden religious exercise,” said Marty Lederman, a professor at Georgetown University Law Center and an expert on church-state separation and religious freedom.
The exemptions, Lederman said, could themselves violate federal law or license individuals and private parties to violate federal law.
“Moreover,” he added, “the exemptions would raise serious First Amendment questions, as well, because they would go far beyond what the Supreme Court has identified as the limits of permissive religious accommodations.”
It would be “astonishing,” he said, “if the Office of Legal Counsel certifies the legality of this blunderbuss order.”
The leaked draft maintains that, as a matter of policy, “Americans and their religious organizations will not be coerced by the federal government into participating in activities that violate their conscience.”
It sets forth an exceptionally expansive definition of “religious exercise” that extends to “any act or refusal to act that is motivated by a sincerely held religious belief, whether or not the act is required or compelled by, or central to, a system of religious belief.”
“It’s very sweeping,” said Ira Lupu, a professor emeritus at the George Washington University Law School and an expert on the Constitution’s religion clauses and on the 1993 Religious Freedom Restoration Act (RFRA). “It raises a big question about whether the Constitution or the RFRA authorizes the president to grant religious freedom in such a broad way.”
In particular, Lupu said, the draft order “privileges” a certain set of beliefs about sexual orientation and gender identity — beliefs identified most closely with conservative Catholics and evangelical Christians — over others.
That, he said, goes beyond “what RFRA might authorize” and may violate the Establishment Clause.
Lupu added that the language of the draft “might invite federal employees,” for example, at the Social Security Administration or Veterans Administration, “to refuse on religious grounds to process applications or respond to questions from those whose benefits depend on same sex marriages.”
If other employees do not “fill the gap,” he said, it could “lead to a situation where marriage equality was being de facto undermined by federal employees, especially in religiously conservative communities,” contrary to Supreme Court rulings.
Jenny Pizer, senior counsel and law and policy director for Lambda Legal, told The Nation that some of the language in the draft order is similar to language in a law passed last year in Mississippi, which a federal district court ruled violated both the Establishment Clause and the Equal Protection Clause.
Pizer said the draft order would appear to violate the Establishment Clause by listing a “particular set of religious beliefs and giving special government protection to people who hold those beliefs as opposed to different beliefs.”
And it bars HHS from taking any adverse action against federally-funded child welfare organizations, including those offering adoption, foster or family support services, that deny anyone these services “due to a conflict with the organization’s religious beliefs.”
Pizer said this language constitutes “a license to discriminate with public money in a series of contexts in which people tend to be vulnerable,” such as against LGBT children in foster care, which is federally funded.
More broadly, she said, it would permit organizations receiving federal grants or contracts to provide child welfare services not only to refuse necessary care but to refuse even to “refer the child to another agency or setting that would be protective and affirming and instead place the child in an environment that is aggressively hostile to who that child is, on religious grounds.”
Even during the George W. Bush administration, she noted, “there were protections in executive orders that beneficiaries of grantees and contractors were not to be discriminated against on the basis of sexual orientation and gender identity.”
Section 4 also requires the Department of Justice to establish a new section or working group dedicated to protecting “religious freedom.”