The Eastern District of Virginia continues to influence the national debate over President Trump’s new Executive Order on immigration. Judge Anthony Trenga of the EDVA offered one of the first wins for the Government when he denied immediate injunctive relief against the new Executive Order. While Judge Trenga’s opinion was not the first to arrive in the Fourth Circuit, his decision is already appearing in the Government’s appellate briefs.
On Friday, March 24, 2017, in Sarsour et al. v. Trump (Case No. 1:17cv 120), Judge Trenga denied injunctive relief sought by plaintiffs challenging President Trump’s second Executive Order on immigration. In a 32-page opinion, Judge Trenga provided detailed consideration of the replacement Immigration Executive Order issued by the Administration on March 6, 2017. After cataloging significant changes in the replacement Order, the judge concluded that it’s not likely that the plaintiffs can prove that the President acted outside his delegated and constitutional authority, and thus the Court denied the emergency relief sought by the plaintiffs.
In our March 20th blog post, we reported on decisions from district courts in Hawaii and Maryland that granted nationwide temporary injunctive relief enjoining critical parts of the replacement Order. The Government has noticed an appeal of the Maryland order to the Fourth Circuit. Judge Trenga’s ruling is the first significant decision arguably upholding the constitutionality of the replacement Immigration Executive Order.
Meanwhile in the Fourth Circuit, the Maryland Order is on the hot seat. The Government has moved to stay that Order and asked for accelerated briefing. The Fourth Circuit granted the acceleration request on March 23rd, and the Government filed its Opening Brief the following day. Additionally, 12 states field an amici brief in support of the Government’s position. The opposition briefs are due on April 14th, and oral argument is scheduled for May 8th in Richmond. Further, the Fourth Circuit sua sponte has requested the views of the parties whether the May 8th hearing should be en banc before all of the Fourth Circuit judges, instead of the customary three-judge panel. The deadline for the responses of the parties on this issue is today.
The Replacement Immigration Executive Order
In a previous blog post, we summarized the replacement Order. The first Executive Order from late-January had obvious facial flaws, including the absence of any national security justification for the critical and controversial “travel ban” provisions.
The replacement Order is, by all measures, facially neutral, and the Administration has provided its statement of justification focused on national security concerns. The justification includes explanations of why each “travel ban” country poses significant immigration dangers.
Judge Trenga’s Sarsour v. Trump Opinion – Preliminaries
The Sarsour Complaint was filed by a series of individual plaintiffs; unlike the earlier Aziz v. Trump case where the Commonwealth of Virginia assumed the lead in the case, there is no state presence in this case.
The specific substantive claims are similar to those in the Hawaii and Maryland cases. That is, there is a count based on the Immigration and Naturalization Act (“INA”), a claim grounded in the Establishment Clause, and then Due Process claims.
Judge Trenga sets the stage for his Sarsoar opinion by reminding us that he’s ruling on a TRO/Preliminary Injunction motion. These are both “extraordinary remedies” which should be “granted only sparingly and in limited circumstances.” He then outlines the now-familiar four-step analysis from Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).
The Court’s findings recognize that the plaintiffs have sufficiently shown their standing to challenge the new Executive Order. The opinion then turns to the INA and APA-based claims. Recall that the earlier Maryland District Court opinion rejected the INA claim as a basis for temporary injunctive relief. Judge Trenga likewise concluded that the plaintiffs have failed to clearly show that the President’s authority is limited under the relevant INA sections
The Critical Establishment Clause Analysis
As before in the other cases, Judge Trenga’s core analysis is directed to the Establishment Clause claim, which is Count 1 in the Sarsour Complaint. Sarsour’s allegation is that the replacement Immigration Executive Order “violates the Establishment Clause because it disfavors the religion of Islam.” Sarsour conceded that the new Executive Order does not facially violate the Establishment Clause, and the District Court then applied the three-part test from Lemon v. Kurtzman, 403 U.S. 602 (1971). Within this test, Judge Trenga focused on the first part of the Lemon test, specifically whether the replacement order has a secular purpose.
Judge Trenga rejected the Government’s argument that the President offered a legitimate, rational, and non-discriminating purpose in the replacement Executive Order, and in turn, this permitted the federal courts to go outside of the four corners of the Order to analyze constitutional validity. (This was the same argument that the Government made unsuccessfully in defense of the original Executive Order; the argument was also unsuccessful before the Ninth Circuit and before Judge Brinkema in Aziz v. Trump.)
Judge Trenga then went to the heart of the case: “[T]he question is now whether the President’s past statements continue to fatally infect what is facially a lawful exercise of presidential authority.” The past statements are those by candidate Trump and campaign surrogates promising a ban on Muslim immigration. These allegedly anti-Muslim statements were the bases for the earlier federal court decisions enjoining the original Executive Order, and they served as the bases in the Hawaii and Maryland District Court decisions enjoining the new Order. Citing Supreme Court authority, Judge Trenga explained that “past actions [do not] forever taint any effort on [the government’s] part to deal with the subject matter.”
Continuing in the next paragraph, Judge Trenga wrote, “the Court cannot conclude for the purposes of the motion that the statements, together with the President’s past statements, have effectively disqualified him from exercising his lawful presidential authority . . . .” He then concludes “the substantive revisions reflected in [the replacement immigration Executive Order] have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominant purpose . . . is to discriminate against Muslims based on their religion . . . .” The Establishment Clause count, therefore, failed at this point in the proceedings.
Continuing with the four-step TRO/Preliminary Injunction analysis, Judge Trenga agreed that the plaintiffs made an adequate showing of irreparable harm. But because of the revisions in the replacement Executive Order, the plaintiffs did not establish that the equities tipped in their favor, and the plaintiffs also did not establish that the public interest favored the issuance of immediate injunctive relief.
The Fourth Circuit Accelerates Consideration of the Maryland District Court’s Ruling
On March 17th, the Government noticed its appeal of the injunction granted by the Maryland District Court. If Judge Trenga’s Sarsour ruling is appealed, then the Fourth Circuit might consolidate the two cases. But even without a formal appeal, the Fourth Circuit will have before it multiple citations to Judge Trenga’s opinion and analysis in the Government’s opening brief.
At this point, the Maryland District Court injunction remains in place, and the Fourth Circuit will consider the matter promptly. As noted above, the Government has already filed its Motion to Stay the Maryland Injunction, and the Fourth Circuit has accelerated consideration of the appeal.
At this point, the Fourth Circuit is likely to see the next major action on the Executive Order, as it appears that the Government is more interested in appellate review here as opposed to the Ninth Circuit.