The Volokh Conspiracy
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Earlier today, Virginia federal district court Judge Leonie Brinkema issued a preliminary injunction against President Trump's executive order on immigration, based on the fact that it discriminates against Muslims. Judge Brinkema's opinion is especially notable because it is the first judicial ruling against the order based on the issue of religious discrimination.
The opinion relies on Trump's own statements advocating a "Muslim ban," and those of his adviser Rudy Giuliani as evidence of the discriminatory intent underlying the order. I defended such reliance here and here, and Judge Brinkema's opinion is based on similar reasoning. The recent Ninth Circuit appellate court ruling against Trump also concluded that these statements were relevant, but did not reach the question of whether the religious discrimination claim was strong enough to prove a "likelihood of success" on the merits; it instead based its ruling against Trump on the Due Process Clause.
Judge Brinkema also rejects the notion -advanced by administration lawyers—that the "plenary power" doctrine requires absolute deference to the president on national security and immigration issues:
Maximum power does not mean absolute power. 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. It is a bedrock principle of this nation's legal system that "the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution." The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 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." Zadvidas v. Davis, 533 U.S. 678, 695 (2001).
This part of the opinion, combined with the recent Ninth Circuit decision, reinforces my view that the plenary power doctrine is no longer seen as an absolute bar to judicial review of immigration decisions. The doctrine is far from dead. But it is not as robust as some advocates would like to believe.
The opinion makes an important point in noting that the president's judgment deserves less deference in a case like this one, where national security is unlikely to be the true motive for the president's decision:
The Establishment Clause concerns discussed above do not involve an assessment of the merits of the president's national security judgment. Instead, the question is whether the EO was was animated by national security concerns at all, as opposed to the impermissible motive of… disfavoring one religious group…
This strikes me as exactly right. But I would add that, once the presence of an "impermissible motive" is established, the extreme weakness of the national security justification for the order is relevant to rebutting the government's claim that they would have adopted the same policy even in the absence of improper discriminatory intent.
In her opinion, Brinkema rejects claims that the order does not target Muslims because it does not cover all of the world's Muslim population: "The argument has also been made that the Court cannot infer an anti-Muslim animus because the E0 does not affect all, or even most, Muslims. The major premise of that argument-that one can only demonstrate animus toward a group of people by targeting all of them at once-is ﬂawed." I made the same point in somewhat greater detail here.
Judge Brinkema bases her discrimination ruling on the Establishment Clause of the First Amendment. For the reasons she explains, this is consistent with Supreme Court decisions on the scope of the Establishment Clause. In my view, however, a discrimination ruling would be better grounded on the Free Exercise Clause of the First Amendment, or on the Equal Protection Clause of the Fourteenth Amendment (as applied to the federal government by longstanding Supreme Court precedent). These parts of the Constitution more clearly address religious discrimination than the Establishment Clause does. It seems to me that one can discriminate against Religion A without thereby necessarily "establishing" the dominance of B or C. By contrast, official discrimination against adherents of a religion necessarily involves penalizing its exercise (violating the Free Exercise Clause) and treating its adherents unequally (and so violating the Equal Protection Clause). Judge Brinkema chose not to address these issues in her opinion, as the Establishment Clause argument was sufficient to justify an injunction.
Like the Ninth Circuit, today's decision concludes that state governments (in this case Virginia) have standing to challenge Trump's order because of its potential impact on students and faculty at their state universities. I defended this approach (which was also followed by the Ninth Circuit) here.
Unlike the Ninth Circuit ruling, Judge Brinkema's decision is limited to the state directly involved in the case before her, and the injunction therefore covers only the application of Trump's order to Virginia residents and people affiliated with Virginia educational institutions.
Both this ruling and the Ninth Circuit decision merely impose or continue preliminary injunctions. They do not reach final decisions on the constitutionality of the order. Both also do not address some of the other statutory and constitutional issues in the case. However, both decisions are based on the conclusion that the plaintiffs challenging the order are entitled to an injunction against it because they are likely to succeed on the merits of at least some of their claims. As such, the rulings prefigure the likely result of a final decision.
As I noted in my analysis of the Ninth Circuit decision, this is still a preliminary stage of litigation. The final outcome is still very much in doubt. Still, today's ruling is a blow to the administration's position, and another notable victory for opponents of the order.
Legal scholar Ruthann Robson has additional analysis of the decision at the Constitutional Law Prof Blog.
NOTE: I am a professor at George Mason University, which is a Virginia state institution covered by Judge Brinkema's ruling. My views on the case do not, however, necessarily represent those of the University or the state government as a whole.