The 9th circuit declined to remove the TRO for two reasons. First they had due process considerations for the green card holders that were affected by the ban. Second the court used the precedent of the Lukumi case to look beyond the EO and declare that the intent was to disfavor Muslims. For this article I will be focusing exclusively on Lukumi and pointing out why Trump MUST go to the Supreme Court to have it overturned. First because an EO is either constitutional or its not so if the EO doesn’t clear either of these standards then it will be unconstitutional and second because the Trump administration already provided an exception to the Green Card holders and most of the people of that nature affected by the ban the courts just did not want to recognize it.
The Lukumi case was used as precedent to allow the courts to look beyond the four borders of the EO. The Church of Lukumi is a religious entity with some very particular beliefs. Without going into the details one of them happens to do with animal sacrifices. In 1987 the Hialeah city council passed a series of ordinances banning animal sacrifice. They then proceeded to make exceptions for Kosher butcheries and most other things that may fall under the ordinance.
The Supreme Court held that while the statute was fine on face value taking the exceptions into consideration, the recording of the council deliberations, and various other details the EO was unconstitutional. They said that while the EO again was facially neutral the intent was to gerrymander it to target the Lukumi church.
In the case of Trump v Washington the ninth circuit accepted the arguments of the plaintiffs that the various statements made by President Trump during the initial period of the campaign as well as a statement from Rudy were enough to declare that the legislative intent behind the EO was to target Muslims. They specifically used the precedent of Lukumi to allow them to look beyond the EO.
Contrast the facts of the Trump situation vs Lukumi. In Lukumi the law was crafted to specifically target the minority group. In the travel ban most muslims were left out and are not impacted in any way. Six of the seven countries have governments that barely function so it is hard to get data from them but according to worldwide census data 10% or less of the worldwide Muslim population live in these countries. In Lukumi the town council was consistent that animal sacrifices were anathema to their community values and this was reflected in the deliberations. President Trump started with a Muslim ban back in the primaries, modified it almost immediately to exclude citizens, it then underwent sever al more modifications to become the extreme vetting we have today.
Anyone can see that the standards of Lukumi has been greatly expanded to make the case for Trump. The main issue here is that Lukumi already presupposes a constitutionally sound EO, which in all honesty the travel ban is. The argument was to look beyond the ban for the legislative intent. This means that there is no possible way for Trump to change the EO to make it constitutional. The argument of intent will always be there and will always be used to declare it unconstitutional.
This has far deeper implications than just this one EO. Suppose there is a country whose populace just had a holiday where they all chanted death to America. Whose leadership was openly hostile to America and had a history as the very first entity to use suicide bombers. Since they are a Muslim majority this same argument could be used to declare it unconstitutional. You could even make the argument that this could extent to other things. Trade executive orders, foreign policy orders, anti-terrorism ones. This is a perfect example of why this is judicial overreach. With this one decision the courts have essentially taken away all the powers of the Executive regarding immigration.
Liberal lawyers will say I am wrong and this is merely a temporary restraining order so I am getting bent out of shape over nothing. I agree this is still a TRO. However anyone who is making this argument is naive and does not look at the practical effects. Any time President Trump makes a law regarding immigration then anybody can file a case and get a TRO on these grounds. Given the liberal interpretation of standing the ninth circuit uses it is possible to get it filed in the courts under their jurisdiction have a friendly judge issue a TRO and the ninth will then use the same argument to uphold the TRO.
There is no other recourse here. Trump has to go to the Supreme Court to get them to declare that these arguments are nonsense. I have no doubt they will do that as when you start getting legislative intent from the campaign trail then it opens up a wide door that changes the legal system forever. This must also be done for practical purposes. The left will keep filing these cases and there is nothing Trump can do to stop that. If Trump takes all these cases to the Supreme Court then the sheer number of victories you get will give you a campaign issue to mobilize your base in 2018 and 2020.