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The latest block of Trump’s immigration ban is the strongest yet, experts say

A federal judge’s decision Monday night may have dealt the strongest blow yet to President Donald Trump’s attempt to keep residents of seven majority-Muslim countries from entering the U.S.

Even though the decision applies to only one state — Virginia.

In her decision to grant a temporary freeze of Trump’s executive order, U.S. District Court Judge Leonie M. Brinkema ruled the Virginia state attorney general would likely succeed in challenging the ban under the religious freedom clause of the First Amendment. That reasoning could pose a bigger threat to the executive order than previous rulings to suspend the ban that applied nationally — like a decision last week by the Ninth Circuit Court of Appeals — and make the administration’s reported plan to rewrite the order more difficult.


Drawing heavily from public statements made by both Trump and his advisor Rudy Giuliani — the statements were included in Virginia’s argument — Brinkema spent nearly seven pages of her 22-page decision explaining why the state had “produced unrebutted evidence” that the order likely violated the Establishment Clause, which protects religious freedom.

“The religious discrimination argument is a stronger one because it applies to all people, whereas the Ninth District Court decision only applied to a limited subset of people protected by the due process clause,” said Adam Winkler, a constitutional law professor at the UCLA School of Law.

While the Ninth Circuit upheld Washington state’s temporary restraining order, the three-judge panel wasn’t ruling against the immigration ban as much as it was striking down the Trump administration’s appeal to reinstate it after a lower court had suspended it. In its decision, the Ninth Circuit judges relied heavily on the Fifth Amendment’s guarantee of due process.

Though an oft-cited aspect of the U.S. Constitution, due process doesn’t protect everyone — like an Iraqi citizen without a visa, for example. After the Ninth Circuit upheld Washington’s nationwide halt, Trump was reportedly considering rewriting the executive order. Brinkema’s acceptance of Virginia’s claims of religious discrimination, however, make achieving the same result harder now, even with a rewrite.


“This is a vitally important ruling because it makes it really difficult for the Trump administration to revive the executive order and issue a new one,” Winkler said. “Religious discrimination is going to apply to the executive no matter who’s included.”

The government argued that the administration’s previous public statements, like one from Trump in which he told Christian Broadcasting Network’s David Brody he would prioritize Christian immigration — weren’t relevant to the case. But Brinkema cited a case (McCreary v. ACLU of Kentucky) that established precedent allowing courts to consider prior acts and statements when trying to determine if a law is secular or religious, according to City University of New York law professor Ruthann Robson.

“Essentially, the courts said they will not be fooled so easily,” she said.

In addition to tossing religious freedom into the mix, Virginia’s case also required a higher burden of proof, which gave the government its first chance to defend the executive order. The only evidence the Department of Justice offered, however, was a copy of the order itself.

“What’s really remarkable here is that the president and the government lawyers are saying, ‘This is a national security order,’ and ‘How dare you rule on this,’” said Brandon Garrett, professor at the University of Virginia School of Law. “But the government could offer no evidence that there was a national security basis.”

In fact, Brinkema noted the “only evidence” was a joint statement from 10 high-level national security professionals who worked at several different government agencies. They admitted “not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the order.”