Editor’s note: I’m a bit late on this ruling, but I wanted to write it up for the record. On Thursday, the president told reporters he plans to issue a new executive order on immigration next week that the government says will be designed to eliminate concerns that led two federal courts to block enforcement nationwide of a ban on admission to the U.S. of people from seven predominantly Muslim countries.
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The Trump administration’s ban on entry to the U.S. for people from seven predominantly Muslim countries likely constitutes state sponsorship of religion in violation of the Constitution, a federal court in Virginia has ruled in a further setback to the White House’s effort to tighten the border in the name of national security.
Though the government contended that security concerns motivated a Jan. 27 executive order that enshrines the ban, public comments before and after the election by the president and his allies suggest that the order reflects policy designed to disfavor Muslims in contravention of the First Amendment’s Establishment Clause, Judge Leonie Brinkema said in a 22-page opinion issued Monday that prevents the administration from enforcing the ban in northern Virginia.
The ruling supplements a ruling on Feb. 3 by a federal judge in Seattle that blocked enforcement of the order nationwide.
In reaching her ruling, Brinkema surveyed at least six years of statements by Donald Trump, who complained to Fox News in 2011 of a “Muslim problem in the world,” and later, on the morning the executive order was signed, told an interviewer that his administration would prioritize admissions for “persecuted Christians” from Syria, as provided in the order.
Two days later, the court noted, former Mayor of New York City Rudolph Giuliani told Fox News he assembled a commission at the request of then-candidate Trump that reframed a Muslim ban as scrutiny of immigrants from the seven countries named in the order.
The statements suggest that the executive order aimed to exclude entry to the U.S. by Muslims, said Brinkema. And that, together with the absence of evidence that would specify the national security concerns that allegedly prompted the order, belie the government’s claim that the travel ban has a secular purpose that would allow it to withstand scrutiny under the Establishment Clause, according to Brinkema.
“Absent the direct evidence of animus [toward Muslims] presented by the Commonwealth [of Virginia], singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however with that direct evidence, a different picture emerges,” Brinkema wrote. “In Giuliani’s own account, the origin of this [order] was a statement by the president that he wanted a legal way to impose a ban on Muslims entering the United States.”
“The Court’s conclusion rests on the highly particular ‘sequence of events’ leading to this specific [order] and the dearth of evidence indicating a national security purpose,” she added.