WASHINGTON – The 9th Circuit Court of Appeals has ruled against the revised executive order by President Donald Trump halting entry into the US from several Muslim-majority countries.
Responding to a lawsuit pressed by the Hawaii attorney general, the federal court rejected the government’s claim that the March 6 executive order was valid on its face, arguing that a “mountain of extrinsic evidence, mostly in the form of statements by the President himself, indicating that the stated rationale is a sham.”
Mirroring the 4th Circuit Court decision from May 25, the 9th Circuit Court called the ban motivated by a desire to exclude Muslims, and deemed the government’s rationale “mere camouflage for an unconstitutional purpose.”
Under the government’s reading of the Mandel precedent, the court said, the president could achieve “almost any unconstitutional aim by cloaking the policy in neutral terms and a national security rationale.”
“A white nationalist could call for a whiter America, and then bar immigrants from Africa. An anti-gun activist could call for a halt on gun ownership, and then bar all imports from the countries that make gun components. So long as the Executive could offer a facially legitimate reason for each of these actions, courts would be powerless to intervene,” the judges wrote. “That is not the law.”
The judges further cited the fact that the Trump administration has “readily agreed” to permit the ban to remain blocked until October to argue that it was not about national security, but really about banning Muslims.
They likewise rejected the government’s argument that the ban did not discriminate against Muslims, but rather residents of specific countries. The president “may not evade allegations of religious discrimination by being over or under inclusive in his exclusions,” the judges said. “So long as an objective observer would conclude that the President targeted this set of countries and refugees in general as an (albeit imperfect) means of excluding Muslims, an Establishment Clause violation has occurred.”
