In April, Yale joined other prominent universities in filing an amicus (friend-of-the-court) brief in two cases challenging the second executive order issued by President Trump on March 6. This second executive order — “Protecting the Nation from Foreign Terrorist Entry Into the United States” — revoked and replaced the first executive order that had been successfully challenged in federal court as a “Muslim ban.”
The district court in Washington state had issued a nationwide injunction against enforcing the first executive order and the Ninth Circuit Court of Appeals denied the government’s request to stay the injunction pending appeal. The second executive order reinstated the 90-day suspension of entry for nationals from six countries (omitting Iraq from the list): Iran, Libya, Somalia, Sudan, Syria, and Yemen.
On May 25, the Fourth Circuit Court of Appeals issued a decision upholding, by a 10-3 majority, the injunction issued by the federal district court in Maryland against enforcement of the second executive order (“EO-2”). The court of appeals found that the purpose of EO-2 was to exclude persons from the United States on the basis of their religious beliefs and that it was therefore unconstitutional under the Establishment Clause that forbids hostility toward any religion.
Although the court acknowledged that EO-2 was supported by a facially legitimate purpose of promoting national security, it found that EO-2 had not been issued in good faith. The court cited statements of President Trump and his representatives on the campaign trail, on Twitter, on Fox News, and elsewhere describing a ban on Muslims as ample evidence that the national security justification was a pretext for religious discrimination. The fact that the President issued EO-2 without extensive input from national security agencies also supported the court’s conclusion that the order’s primary purpose was not national security.
The chief judge who wrote the majority opinion said that, in context, the order “drips with religious intolerance, animus, and discrimination.”
Yale has also joined in an amicus brief filed by a coalition of colleges and universities in the Ninth Circuit Court of Appeals in another legal challenge to EO-2 on appeal from the district court in Hawaii. That appeal before the Ninth Circuit is still pending.