Earlier this week the Council on American-Islamic Relations (CAIR) announced it had filed a lawsuit against President Donald Trump’s Executive Order (EO) that denied lawful entry to visa holders from seven Muslim-majority countries. The ban was followed by cases of both Muslim and non-Muslim visa holders turned away at U.S. airports.
Officially named “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” CAIR refers to the EO throughout the suit as “The Muslim Exclusion Order.”
CAIR’s 35-page court filing details the reasoning for the suit and highlights specific elements of President Trump’s EO that is in violation of the Constitution. The plaintiffs are a long list of Muslim-American activists, including Linda Sarsour, Zahra Billoo, Dawud Walid, Hassan Shibly, Imran Siddiqi and Namira Islam, among other regional CAIR leaders. The defendants are President Trump, the Secretary of Homeland Security John F. Kelly, U.S. Department of State and Director of National Intelligence.
Most notably, the suit includes several John Doe and Jane Doe plaintiffs, meant to represent the anonymity of several individuals directly affected by Trump’s EO. Among them are Yemeni and Somali students on F-1 visas, three Syrian asylum-seekers who risk losing the opportunity for lawful permanent residency and a Sudanese man who has petitioned for his pregnant wife of Sudanese national origin and awaiting her visa.
The suit argues, “The Muslim Exclusion Order is the fulfillment of President Trump’s longstanding promise and boasted intent to enact a federal policy that overtly discriminates against Muslims and officially broadcasts a message that the federal government disfavors the religion of Islam, preferring all other religions instead.”
As Muslim Girl suspected earlier, the First and Fifth Amendments may be in direct violation, thus making the EO unconstitutional. CAIR brings a total of four counts against the defendants.
Count 1: Violation of the First Amendment, Establishment Clause
- The EO deprives Muslims the “right to be free from religious discrimination in violation of the Establishment Clause…” The defendants “[have signed] a Muslim Exclusion Order whose purpose and effect is to discriminate on the basis of religion.”
- The EO “imposes upon Islam the stigma of government disfavor,” whereas the First Amendment prohibits the government from explicitly disproving of one religion and disapproving of another. (In Trump’s case, his preference for Christians from the seven banned countries was made clear).
Count 2: Violation of the First Amendment, Free Exercise
- Trump’s EO on lawful permanent residents and visa holders “deprives them their right to free exercise of religion as secured by the First Amendment… by discriminating against them based on their religious beliefs and by substantially burdening their right to freely exercise their religious faith.”
Count 3: Violation of the Fifth Amendment, Equal Protection
- CAIR’s suit argues that by restricting lawfully residing Muslim non-U.S. citizens from “engaging in international travel and returning home [to] the United States,” the defendants are effectively treating them like “second-class citizens.”
- The Equal Protection clause of the Fifth Amendment states: “any religion-based bar on the readmission of lawful permanent residents—who have a lawful readmission [even with a brief trip abroad] unless and until the government can prove they should lose that right.”
Count 4: Unlawful Agency Action in Violation of the Administrative Procedure Act, 5 U.S.C. §§ 702, 706
- The Administrative Procedure Act is a U.S. federal statute that governs how federal agencies interact with people.
- The specific statute CAIR brings up as being in violation is §§ 702: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
- Statute §§ 706 states, agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” shall be reviewed by courts. CAIR makes a strong case, arguing that the defendants’ actions are in fact “arbitrary and capricious, shock the conscience, [and] violate the decencies of civilized conduct…”
- CAIR also argues that various freedoms accorded to lawful non-U.S. citizens are being directly violated, among them: free exercise of religion, right to be free from discrimination on the basis of religion, the right to be free from condemnation by the government on the basis of religion, and international human rights.
To read the full court document, click here.
In a press release, CAIR-Missouri’s Executive Director Faizan Syed commented, “Such executive orders are un-American and stand in stark contrast to our nation’s core values. It is our duty to welcome refugees and immigrants and to recognize the tremendous value that these individuals add to our nation.”
It remains to be seen just how the outcome of this lawsuit will effect the EO and whether this filing, along with several others, will pressure the Trump administration to rethink their course of action.