Late on Friday, Americans United entered the legal battle against Muslim Ban 2.0: We filed a friend-of-the-court brief supporting the State of Hawaii in seeking a temporary restraining order against President Donald J. Trump’s second executive order restricting Muslim immigration.

Although the Trump administration made changes in the second executive order, it still bars immigrants from six Muslim-majority countries and both shuts down the refugee program for four months and greatly diminishes the number of refugees who may be admitted after that.

AU and others continue to challenge the new ban as unconstitutional because it targets Muslims for disfavor based solely on their religion. That’s why we filed the brief, which was joined by the Southern Poverty Law Center, in the case of State of Hawaiʻi v. Trump.

Our brief describes why the new ban is still unconstitutional: “(T)he replacement Executive Order purports to address some concrete failings of the original version that the courts have identified, such as the exclusion of lawful permanent residents. But it does not get to the basic defect: The efforts are all designed and intended to effect President Trump’s promised ban on Muslims.

“(T)he government has singled out one religious group – Muslims – for official disfavor and maltreatment,” the brief continues. “By instituting a punishing ban on Muslim immigrants, the government runs roughshod over core First Amendment protections.”

The brief notes that, multiple times during the campaign, Trump promised to ban Muslims, and that, after he was questioned about the legality of a Muslim ban, he announced that he would call it a ban on “territories” instead.


AU is supporting the State of Hawaii's case that President Trump's Muslim ban is unconstitutional.

We’ve argued that these executive orders represent Trump’s unconstitutional Muslim ban in briefs filed in three of the court challenges to the first executive order: State of Washington v. Trump (which resulted in the first ban being frozen nationwide on Feb. 3), Aziz v. Trump (in which a judge put the ban on hold in Virginia) and Pars Equality Center v. Trump (in which the court has yet to rule).

In Aziz v. Trump, in the U.S. District Court in Alexandria, Va., Judge Leonie Brinkema held that the first executive order likely violated the First Amendment’s prohibition on government singling out a religion for disfavor. Her order to freeze the ban in Virginia echoed the argument that AU has been making that Trump’s campaign rhetoric is relevant: “Just as the Supreme Court has held that ‘the world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office.” What candidate Trump said that he was going to do – ban Muslims – says an awful lot about what President Trump has actually done.

In the latest case in Hawaii, the state argues that the ban is an impediment to its universities, businesses, tourism industry, residents and culture: “President Trump’s new Executive Order is antithetical to Hawaii’s State identity and spirit.”

The state’s co-plaintiff, Ismail Elshikh, is an American citizen of Egyptian descent, a Hawaii resident for over a decade and imam of the Muslim Association of Hawaii. For nearly two years, he and his wife have been in the process of petitioning for a visa for his mother-in-law, a Syrian national trying to immigrate to the U.S. Her status now is in limbo due to the bans. “The family is devastated,” the complaint notes.

The complaint also explains that members of Elshikh’s mosque are affected by the ban: “Many members of Dr. Elshikh’s Mosque have family and friends living in the countries listed in the new Executive Order. Because of the new Executive Order, they live in forced separation from those family and friends.”

Although Trump signed the second executive order on March 6, it does not go into effect until Thursday, March 16. Judge Derrick K. Watson of the U.S. District Court in Honolulu scheduled a hearing for 9:30 a.m. this Wednesday on Hawaii’s request for a restraining order that would at least temporarily put the ban on hold.

We’ll keep you updated here on the status of this case and AU’s continued involvement in the fight against this unconstitutional, un-American Muslim ban.