ALEXANDRIA, VA — A federal district judge in Virginia has ruled that President Trump’s Executive Order 13,769 (EO) violates the Constitution’s First Amendment, guaranteeing that the government shall not establish an official religion, in terms that are likely to carry over into any replacement order Trump may issue in the coming days.
The lawsuit is separate from the one brought by Washington State, which dominated national news when another federal judge issued a temporary restraining order against the EO — one later affirmed by the U.S. Court of Appeals for the Ninth Circuit. The San Francisco-based appeals court has temporarily halted all proceedings in that case.
The Establishment Clause of the First Amendment provides, “Congress shall make no law respecting an establishment of religion.” Democratic politicians representing the Commonwealth of Virginia argue that the EO violates this constitutional provision.
Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia agreed with the Democrats, holding in a 22-page order that EO 13,769 violates the Constitution’s Establishment Clause and not ruling on the other legal issues raised in Virginia’s challenge.
The court found fault with § 5(b) of the EO, which specifies that “to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
The trial court noted that the president’s later statements on this policy clarified that “we focused on, instead of religion, danger—the areas of the world that create danger for us,” but the judge was not convinced.
Brinkema also rejected the claim that the Constitution grants Congress and the president plenary power over immigration not subject to judicial second-guessing. “Maximum power does not mean absolute power,” she wrote. “Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights.”
The district court continued:
Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.”
Brinkema was quoting Zadvydas v. Davis, a Supreme Court case written by a liberal justice and often criticized by conservatives because the original meaning of the relevant constitutional provisions gave Congress complete authority over immigration questions.
The trial court stated that it took into account Trump’s comments from when he was a private citizen running for office, reasoning that his words back then were relevant because “a person is not made brand new simply by taking the oath of office.”
“The ‘Muslim ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of [today],” the judge continued.
The court went on to write that the Trump administration failed to produce evidence “to support their content that the EO was primarily motivated by national security concerns.”
Brinkema cast aside the argument that the seven countries named in the EO are constitutional because they were likewise singled out by the Obama administration. She held that — under the Supreme Court case McCreary County v. ACLU, a case that had nothing whatsoever to do with immigration or national security — the Supreme Court empowered her to say that Obama’s actions were constitutional. There was no evidence that former President Obama was trying to single out Muslims, but the current president’s choosing the same list violates the Establishment Clause.
The district court also stated that “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise,” even though the EO impacts perhaps only 15 percent of Muslims worldwide. “It is the discriminatory purpose that matters, no matter how inefficient the execution,” she added.
The court then narrowed its ruling and reduced the chances of it being reversed on appeal by saying that this decision does not forbid all policies involving Muslim-majority countries. The court’s “conclusion rests on the highly particular ‘sequence of events’ leading to this specific EO and the dearth of evidence indicating a national security purpose.”
“It is laughable to suggest that an immigration order somehow violates a provision of the Constitution designed to ensure that the government cannot coerce people to join a religious activity that violates their conscience,” former U.S. Ambassador Ken Blackwell exclusively tells Breitbart News in reaction to Brinkema’s ruling. “Our immigration and asylum laws have always taken into account the religion and nationality of those attempting to enter our nation. This judge is casting doubt on decades of federal law.”
President Trump’s new immigration policy will be released later this week.
The case is Aziz v. Trump, 1:17-cv-116 in the Eastern District of Virginia.
Ken Klukowski is senior legal editor for Breitbart News and a fellow with the American Civil Rights Union. Follow him on Twitter @kenklukowski.