From what i can glean its has gone to the appellant court of the ninth circuit believed to be one of the most liberal in the country? After watching the initial request for a temporary restraining order on the Executive order posted by No.1 and not really understanding the full complexity of the legal arguments mostly because of legalese I wonder how the forum thinks it will go? Also is there any precedent in allowing views that were expressed prior to Mr Trump taking office as being pertinent to the executive order in the claim that its primary purpose is discriminatory? e.g Rudolph Giuliani,
From the court filings, including the briefs now submitted to the Ninth Circuit, the protections of religion, equal protection, and due process emerge as central. Under the First Amendment, there should be no laws “respecting an establishment of religion” or “prohibiting the free exercise” of religion. The 14th Amendment’s command that government shall not make or enforce laws which deny to any person “equal protection of the laws,” added to the Constitution after the Civil War, was made applicable to the federal government through the Fifth Amendment; those provisions are also likely to inform the Ninth Circuit’s decision. Additionally, the Fifth Amendment’s Due Process Clause protects people from having rights denied without sufficient legal process and even from having some fundamental rights denied, no matter the process.
For either the Religion and Equal Protection Clause arguments to gain purchase, judges will likely have to find that the EO intentionally targets Muslims. But that word barely appears in the almost 3,000 word EO. That 1886 case of Yick Wo, involving Chinese noncitizens, is again helpful.
The Court pronounced that although a “law itself be fair on its face and impartial in appearance,” if it is “applied and administered by public authority with an evil eye and an unequal hand,” it will be evaluated accordingly.
In most contemporary situations, establishing the “evil eye” — an intent to discriminate — in a seemingly impartial law is an insurmountable hurdle. Lawmakers generally do not make statements targeting religious or other groups, and even if one legislator is so boorish, the legislature as a whole can disavow that legislator as an outlier.
Here, however, the EO is promulgated by the person of the president, who is repeatedly and widely on the record discussing the need for a Muslim ban. Additionally, the president’s intent is corroborated by at least one well-known person, Rudolph Giuliani, who claims to have offered advice in how to draft the EO so that the “Muslim ban” would not, in fact, look like a “Muslim ban.”
Moreover, the EO itself does address religion. In its subsection on resuming refugee claims, which the EO suspends for 120 days, it instructs the government to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.” In the seven nations covered by the EO, the majority religion is Islam. Thus, unless the government considers different sects of Islam as minority religions, only non-Muslims would be eligible for a claim of religious-based persecution.