Privacy SOS

Muslim ban court rulings: What do they mean and where do we stand?

The national security blog Just Security has a fantastic writeup of where we stand vis a vis the five federal court orders issued over the weekend in response to lawsuits over Trump’s Muslim ban. The Boston order, issued in response to a lawsuit filed by the ACLU of Massachusetts and attorneys with the American Immigration Lawyers Association (AILA). 

Just Security writes:

As for what the orders do, some of that depends on whether they truly apply nationwide. If so, then it is unlawful under the order in the Boston case for any individual who was legally entitled to enter the United States prior to the issuance of the Executive Order to be detained between now and next Saturday. That’s not just those with green cards and other folks with lawful immigration status; that’s everyone potentially impacted by the Order. So if the government (through Noel Francisco, who, as Acting Solicitor General is theoretically in charge of decisions to appeal) is looking for the order that is the most impactful, it seems obvious that it’s Boston.

But let’s also be clear about what the orders don’t do: They don’t resolve the myriad legal challenges to the Executive Order–including claims that the Order is inconsistent with statutory rules for processing visa applications, refugees, and other arriving non-citizens; that it violates the Due Process Clause; that it violates equal protection; and that it violates the Establishment Clause. Although all five orders are predicated on the conclusion that the plaintiffs have a likelihood of success on the merits of their challenges to the Executive Order, the potential for irreparable harm absent judicial intervention in this case weighed so heavily and uniformly in favor of judicial intervention that we ought not to confuse such interim relief with merits-based invalidation of the Executive Order. Nor do these orders have any impact on folks affected by the Executive Order who haven’t been stuck at airports–either because they’re already here in the United States (and now can’t leave), or because they’re somewhere overseas (and now can’t get here). Put another way, a series of very important legal battles were fought this weekend, but in the broader context of this Executive Order, they were but minor skirmishes in comparison to the legal war that’s necessarily coming…

© 2021 ACLU of Massachusetts.