Why Trump’s ‘Muslim Ban’ Lost in Court

By overtly targeting Muslims with a travel ban, President Trump put himself at odds with U.S. treaties and other legal agreements, ensuring his latest legal setback in federal court, writes legal scholar Marjorie Cohn for JURIST.

By Marjorie Cohn

After a federal district court judge and a unanimous three-judge panel of the Ninth Circuit Court of Appeals ruled that Donald Trump’s Executive Order (EO) instituting a travel ban was likely illegal, the president suspended it and issued a new EO on March 6.

President Trump addressing a joint session of Congress on Feb. 28, 2017. (Screen shot from Whitehouse.gov)

On March 15, a federal judge granted a temporary restraining order in Hawaii v. Trump et al., halting the operation of the new EO nationwide. U.S. District Judge Derrick K. Watson found that plaintiffs met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief.

When the case is heard on the merits, the legality of the new EO, which categorically suspends immigration from six Muslim majority countries to the United States, should be assessed in light of U.S. treaty and customary international law, according to an amicus brief filed in the case.

Eighty-one international law scholars, including this writer, and a dozen non-governmental organizations with expertise in civil rights law, immigration law or international human rights law (amici) argue in their amicus brief that the new EO threatens discrimination that would run afoul of two treaties. They are the International Covenant on Civil and Political Rights (CCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

When the United States ratifies a treaty, it not only makes the U.S. a party to that treaty; it also becomes U.S. domestic law under the Supremacy Clause of the Constitution, which says treaties “shall be the supreme law of the land.” Courts have a duty to restrain federal executive action that…

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