Case Note: Sarsour v. Trump (E.D. Va. 2017): Upholding the “Muslim Ban” 2.0

On March 6, 2017, President Donald J. Trump issued a revised Executive Order which barred, with certain exceptions, entry to the United States of nationals from six predominantly Muslim countries, suspended the entry of refugees for 120 days, and reduced the number of refugees who can be admitted to the United States by more than half. The Plaintiffs (political activist Linda Sarsour, as well as 26 additional Muslim individuals) filed an emergency motion for a temporary restraining order and/or preliminary injunction. While other litigation opposing the revised Executive Order were filed to enjoin only Sections 2 and 6 of the revised Executive Order, in this case the Plaintiffs asked the Court to enjoin the enforcement of the revised Executive Order in its entirety. In order for the Plaintiffs to succeed, they had to prove that (1) they are likely to succeed on the merits of their case; (2) they are likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of the equities tips in their favor; and (4) an injunction would be in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008).

In their complaint, the Plaintiffs alleged that the injury from the revised Executive Order is the harm created by a stigma against Muslims living in the United States. Specifically, they claimed that as a result of the Defendants’ conduct, the Defendants promoted views that (1) disfavor and condemn their religion of Islam; (2) marginalize and exclude Muslims, including themselves, based on the claim that Muslims are disposed to commit acts of terrorism; (3) endorse other religions and non-religion over Islam; (4) portray Muslims as outsiders, dangerous, and not full members of the political community; and (5) cast all non-adherents of Islam are insiders and therefore favored. 

The Plaintiffs claimed that the revised Executive Order violated the Immigration and Nationality Act, the Establishment Clause, and the guarantee of Equal Protection. The Court relied on the scope of the President’s authority to find that the Plaintiffs are not likely to succeed on the merits of these claims. For example, in the Establishment Clause context, the Court found that the revised Executive Order has a stated secular purpose within the President’s power to enact.

The Court acknowledged that, because the revised Executive Order is “facially neutral,” it must apply the three-part test articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) to determine whether the act violates the Establishment Clause. Under the Lemon test, the government action (1) “must have a secular legislative purpose,” (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) “the statute must not foster ‘an excessive government entanglement with religion.’” Lemon, 403 U.S. at 612-13 (quoting Walz v. Tax Com. of New York, 397 U.S. 664, 668, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970)). Because the Plaintiffs did not contend that the revised Executive Order failed to satisfy the second and third prongs, the Court only considered whether the revised Executive Order had a secular purpose.

As previously noted, the Court determined that the revised Executive Order had a stated secular purpose: the “protect[ion of United States] citizens from terrorist attacks, including those committed by foreign nationals.” EO-2 § 1(a). The Court therefore extended deference to the “government’s facially legitimate and non-discriminatory stated purposes.” The Court was not convinced that previous statements made by President Trump and his advisors that the purpose of the revised Executive Order was to burden Muslims and give benefit to Christians were relevant here, because the Court found that those statements were made in regard to the first Executive Order. Instead, the Court determined that this revised Executive Order was materially different in structure, text, and effect from the first Executive Order, and was not rushed into immediate effect but, rather, was issued ten days before its effective date, thereby permitting government bodies to better prepare for its effective implementation. 

The Court found that the Plaintiffs did not establish that (1) they are likely to succeed on the merits of their case, (2) the balance of hardships tips in their favor, or that (3) immediate relief would be in the public interest. Because the Court found that the Plaintiffs did not establish all the necessary elements to obtain an injunction enjoining the enforcement of the revised Executive Order, the Court denied the Plaintiffs’ motion.

Editors’ Note: Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.