Remember Hobby Lobby? Republicans should have been more careful in what they wished for.
— by Ian Millhiser, Justice Editor at ThinkProgress
Saturday night, lawyers representing President Donald Trump filed an emergency motion with the United States Court of Appeals for the Ninth Circuit, asking it to reinstate Trump’s executive order preventing many people from seven majority Muslim nations from entering the United States. On Friday, a federal trial judge issued a temporary order halting this Muslim ban.
The Ninth Circuit did not immediately grant Trump’s request. Instead, it ordered the parties to submit additional briefing.
Trump’s legal arguments rest on a 1972 Supreme Court decision which establishes that many foreign nationals have little, if any, First Amendment rights when they seek to enter the United States. This case does bolster Trump’s case for reinstating the ban against some of the arguments that its opponents have raised in court.
But Trump’s emergency motion makes no mention of one of the strongest arguments against the ban: Even if the First Amendment does not apply to the Muslim ban, that would not be enough to save Trump’s executive order — thanks to a federal law expanding the scope of religious liberty in the United States beyond the bounds of the First Amendment, and the Supreme Court’s decision in Burwell v. Hobby Lobby.
Trump’s argument
As a candidate for president, Trump repeatedly promised to ban Muslim immigrants from entering the United States. Trump’s executive order targets seven majority Muslim nations (although it’s worth noting that the order excludes several majority Muslim nations where Trump’s company does business). On the day that Trump handed down the order, he gave an interview to the Christian Broadcasting Network in which he said that Christians from the banned nations would be given special treatment should they seek to enter the United States.
Nevertheless, Trump’s lawyers now claim that the real purpose of the executive order isn’t to implement the Muslim ban Trump repeatedly promised as a candidate, but rather to protect “interests of national security.”
Trump’s motive for handing down the order matters because the First Amendment prohibits laws “respecting an establishment of religion, or prohibiting the free exercise thereof.” If Trump acted for the purpose of harming Muslims, then he violated the Constitution.
Trump’s lawyers argue that courts must accept Trump’s stated motive even if Trump did act with unconstitutional animus. Under the Supreme Court’s decision in Kleindienst v. Mandel, “‘when the Executive exercises’ immigration authority ‘on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion[.]’”
Mandel was a First Amendment case. It involved a Belgian journalist who was invited to speak at a Stanford University conference, but was not allowed into the United States — allegedly because of his Marxist views. The Court held that this journalist could not invoke the First Amendment to challenge the decision not to let him into the country.
When the Executive exercises this power [to admit foreign nationals] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
So, if Mandel was the last word on the subject, Trump would have a much stronger case. But it was not, and that leads to the fatal flaw in Trump’s argument.
Enter Hobby Lobby
The First Amendment is not the final word on religious liberty claims against the federal government. Under the Religious Freedom Restoration Act (RFRA), “government shall not substantially burden a person’s exercise of religion” except in very limited circumstances. This law was enacted to expand the bounds of religious liberty beyond the weaker protections provided by the First Amendment. Significantly, it also was enacted after the Supreme Court’s decision in Mandel.
Which brings us to the Hobby Lobby case. Though RFRA expands the scope of religious liberty, the text of the RFRA statute states that its purpose was merely to restore a relatively expansive reading of the First Amendment that the Supreme Court announced in a 1963 opinion, then rejected a few decades later.
This limited purpose created a problem for conservatives, who wanted to use RFRA to exempt themselves from a legal obligation to include birth control in their employer-provided health plans. The Supreme Court had never held that the First Amendment permits such claims. To the contrary, the Court held in United States v. Lee that “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
To put it another way, to win their case in Hobby Lobby, the plaintiffs had to convince the Court to read scope of religious liberty under RFRA to be much more expansive than any Supreme Court decision in American history had ever understood it to be under the First Amendment. And that’s exactly what the Court did in Hobby Lobby.
A 2000 amendment to RFRA, Justice Samuel Alito wrote for the Court, was “an obvious effort to effect a complete separation from First Amendment case law.” Thus, thanks to Hobby Lobby, prior First Amendment decisions are completely irrelevant to the question of whether a particular government action violates RFRA.
This interpretation of that 2000 amendment has clear implications for Trump’s Muslim ban. Even if Mandel does prohibit courts from examining Trump’s true motive for issuing the Muslim ban when that ban is challenged under the First Amendment, Mandel does not prevent courts from searching for Trump’s true motive in a RFRA suit.
Hobby Lobby effects “a complete separation” between RFRA and the First Amendment, and that complete separation includes Mandel.
This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe. ‘Like’ CAP Action on Facebook and ‘follow’ us on Twitter