Defending the National Security Executive Order Now At The Supreme Court

EDWARD WHITE, ACLJ

The federal government’s primary job is to keep us safe. The President’s revised national security Executive Order is designed to do just that. The Order temporarily pauses entry into the United States of refugees and nationals from six unstable and/or terrorism-infested countries to allow time for needed improvements to the immigration and refugee screening processes from those countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen).

Despite the Order’s clear purpose to protect our national security, groups on the Left have been challenging the Order in court by claiming (wrongly) that it is a “Muslim ban” based on miscellaneous campaign comments made by then-candidate Trump and/or his advisors.

To date, the legal challenges to the Executive Order have succeeded, with a federal trial judge in Hawaii issuing a nationwide injunction against Sections 2 and 6 of the Order (that injunction is now on appeal to the United States Court of Appeals for the Ninth Circuit) and with the United States Court of Appeals for the Fourth Circuit recently upholding a separate nationwide injunction against Section 2(c) of the Order.

These legal challenges are now at the Supreme Court of the United States. The federal government has requested that the Court review the ruling of the Fourth Circuit and also stay the enforcement of the two injunctions.

The American Center for Law and Justice (“ACLJ”) filed two amicus curiae (“friend-of-the court”) briefs in support of the government. In those briefs, which you can read here and here, we urge the Court to grant the government’s request and review the Fourth Circuit’s incorrect ruling, and we also urge the Court to stay the two injunctions. A stay of the injunctions will allow the government to implement the important national security features of the Executive Order that have been barred from taking effect because of the injunctions. In our briefs, we note that they are supported by the more than 230,000 people who have joined our Committee to Defend Our National Security from Terror.

Our briefs explain that, under the Constitution and federal statutes, the President has broad power to exclude aliens from this country on the basis of national security reasons. Courts generally defer to the exercise of the President’s power in this area, which is what the courts should have done here. The revised Executive Order is a valid exercise of President Trump’s authority that courts should not disturb.

Rather than uphold the Executive Order, as the Hawaii trial court and Fourth Circuit should have done, those courts enjoined its enforcement based on miscellaneous campaign comments made by then-candidate Trump, or by his advisors, which the courts wrongly concluded evidenced an anti-Muslim purpose for the Executive Order. We explain that the mere suggestion of a possible religious or anti-religious motive, mined from past comments of a political candidate or his supporters while said on the campaign trial as private citizens, is not enough to defeat the Executive Order. All that is needed to establish the constitutionality of a government action is that it have a secular purpose and was not motivated wholly by religious considerations. The revised Executive Order clearly serves a genuine secular purpose—protecting our national security—and is not motivated by anti-religious considerations. The Executive Order is constitutional


Used with the permission of the American Center for Law and Justice.


Edward White is Senior Counsel with the ACLJ and has been practicing law for more than twenty-five years. He is a graduate of the University of Notre Dame Law School, where he was a Thomas J. White Center for Law & Government Scholar and managing and student articles editor of the Notre Dame Journal of Law, Ethics & Public Policy. Since 2000, White has been specializing in civil rights litigation, representing clients across the country primarily in the areas of free speech, religious freedom, sanctity of human life, and traditional family values.