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Thursday, March 16, 2017

Highlights From Court Ruling Halting Trump’s Revised Travel Ban - The New York Times

"The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. … It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%. It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the Government does, that it does not.



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Addressing the government’s suggestion that the court should rely only on the text of the executive order to evaluate its purpose:



Only a few weeks ago, the Ninth Circuit commanded otherwise. … The Supreme Court has been even more emphatic: courts may not “turn a blind eye to the context in which [a] policy arose.”



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Suggesting why the government wanted the court to stay focused on the text of the executive order:



The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.



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After extensively quoting President Trump:



The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” … The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”



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Saying that Mr. Trump’s own words, and those of his aides and advisers, betrayed the true intent of the executive order:



Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.



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Giving credence to plaintiffs’ contention that national security was merely a pretext for, not the true purpose of, the executive order:



Other indicia of pretext asserted by Plaintiffs include the delayed timing of the Executive Order, which detracts from the national security urgency claimed by the Administration, and the Executive Order’s focus on nationality, which could have the paradoxical effect of “bar[ring] entry by a Syrian national who has lived in Switzerland for decades, but not a Swiss national who has immigrated to Syria during its civil war,” revealing a “gross mismatch between the [Executive] Order’s ostensible purpose and its implementation and effects.”



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Leaving open the possibility that the Trump administration could issue yet another revised executive order that finally passes constitutional muster:



Here, it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation. … context may change during the course of litigation, and the Court is prepared to respond accordingly.



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Finding that Mr. Elshikh had provided evidence that his First Amendment rights had been impinged:



Dr. Elshikh has made a preliminary showing of direct, concrete injuries to the exercise of his Establishment Clause rights. … These alleged injuries have already occurred and likely will continue to occur upon implementation of the Executive Order.



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Concluding:



As discussed above, Plaintiffs have shown a strong likelihood of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution. When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO."



Highlights From Court Ruling Halting Trump’s Revised Travel Ban - The New York Times

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