Establishment Clause

The Supreme Court will no longer hear oral argument in the travel ban case—previously scheduled for October 10—for now. The Court has asked the parties to brief whether the new travel ban makes the case moot, meaning the dispute, and therefore the case, is over.

The president’s March 6 executive order prevented people from six predominately Muslim countries from entering the United States for 90 days. In June the Supreme Court temporarily prevented it from going into effect against those with a “bona fide relationship with a person or entity in the United States.” This travel ban was set to expire on September 24.

On September 24 the President issued a presidential proclamation indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Also, certain government officials and their families from Venezuela may no longer receive non-immigrant visas.

On its last opinion day of the term, the Supreme Court announced that it would rule on the constitutionality of the Trump administration’s revised travel ban. In the meantime to the extent the executive order prevents foreign nationals and refugees “who lack any bona fide relationship with a person or entity in the United States” from entering the United States, it may go into effect until the Supreme Court rules on the merits of this case.   

The president’s first executive order prevented people from seven predominantly Muslim countries from entering the United States for 90 days, froze decisions on refugee applications for 120 days, and capped total refugee admissions at 50,000 for fiscal year 2017.

The Ninth Circuit temporarily struck it down, concluding this executive order was not religion-neutral, and that it likely violated the due process rights of lawful permanent residents, nonimmigrant visa holders, and refugees.

The Department of Justice (DOJ) has filed a brief asking the Supreme Court to review the Fourth Circuit’s recent decision temporarily preventing the President’s revised travel ban from going into effect. Numerous states supported both side as amici in the litigation. Numerous local goverments supported the challengers.

The President’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.

The President’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers.  

On March 16, 2017, President Trump’s second travel ban executive order was scheduled to go into effect. Within hours of each other federal judges from Hawaii and Maryland issued decisions temporarily preventing portions of it from going into effect nationwide. Both decisions conclude that the executive order likely violates the Establishment Clause because it was intended to prevent people from for entering the United States on the basis of religion.

The State of Hawaii (and an American citizen of Egyptian descent with a Syrian mother-in-law lacking a visa) brought the case decided by the court in Hawaii.

There are two ways of looking at this case, both of which are hard to argue with: state aid to religious organizations means less money for secular causes, and all preschool students should have access to safe playgrounds no matter where they go to school.

In Trinity Lutheran Church of Columbia v. Pauley the Supreme Court will decide whether Missouri can refuse to allow a religious preschool to receive a state grant to resurface its playground based on Missouri’s “super-Establishment Clause.”    

The Missouri Department of Natural Resources (DNR) offers grants to “qualifying organizations” to purchase recycled tires to resurface playgrounds. The DNR refused to give a grant to Trinity Church’s preschool because Missouri’s constitution prohibits providing state aid directly or indirectly to churches.

The majority of the state constitutions contain “Blaine Amendments” or “super-Establishment Clauses” whose prohibitions against aid to churches and religious schools exceed the requirements of the federal Establishment Clause.     

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