New York Attorney General Eric Schneiderman, who has joined the legal battle against President Donald Trump’s executive order barring travel from seven majority-Muslim countries, asserted asserted today that statements by the president and former Mayor Rudolph Giuliani prove that the White House fiat is specifically targeted at people of the Islamic faith—rendering it unconstitutional under the First Amendment.
Last night, the 9th Circuit Court of Appeals heard oral arguments from the U.S. Department of Justice and Washington State over Trump’s decree temporarily banning entry from Syria, Somalia, Sudan, Libya, Yemen, Iran and Iraq, which a Seattle federal judge suspended last week. Schneiderman has joined 15 other state attorneys general in condemning the executive order, and filed an amicus brief supporting the Evergreen State’s lawsuit.
Schneiderman said justices are likely focusing on whether the dictate violates the First Amendment’s prohibition on “respecting the establishment of a religion, or prohibiting the free exercise thereof”—and argued Trump’s own remarks make it clear that it does.
“I think he made a statement right at the time he issued the order that, ‘You know, I’ve taken steps to prevent radical Islamic terrorists from—to keep them out,'” Schneiderman said during an unrelated press conference. “So he’s identified this as being a religiously motivated order himself. Others around him have said similar things.”
The prosecutor’s comment is a rough paraphrase of a statement Trump made shortly after the swearing-in of Gen. James Mattis, his secretary of the Department of Defense, on January 20, the day he signed the order.
“I am establishing new vetting measures to keep radical Islamic terrorists out of the United States of America,” the president said at the time. “We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas. We only want to admit those into our country who will support our country and love deeply our people.”
Schneiderman’s also signed onto the American Civil Liberties Union lawsuit filed on behalf of two people at John F. Kennedy Airport the weekend after the order went into effect. The ACLU convinced Brooklyn Judge Ann Donnelly to temporarily keep the administration from deporting anybody who was approved to enter the country under former President Barack Obama.
The executive order states that the secretaries of State and Homeland Security can jointly determine to admit people to the country as refugees on a case-by-case basis if their admission is in the national interest, “including when the person is a religious minority in his country of nationality facing religious persecution.”
A day after Trump signed the executive order, he noted there are more than 40 Muslim-majority countries worldwide that are not affected by the order and noted former President Barack Obama’s administration had highlighted the seven impacted nations as potential sources of terrorists.
But in a recent tweet, Trump said that the courts “must act fast” because the “threat from radical Islamic terrorism is very real.” He also said in a previous tweet that certain Middle Eastern countries agree with the ban because they know that “if certain people are allowed in, it’s death & destruction.”
Giuliani told Fox News eight days after the signing of the order that Trump wanted a “Muslim ban” and asked him to put together a commission to give him guidance on “the right way to do it legally.”
The attorney general said that it is unclear which experts Trump and his team spoke to, but it is evident that the intent and effect of the executive order is to discriminate against Muslims.
“As far as Rudy, what can I say?” Schneiderman continued, eliciting laughter from elected officials, advocates and activists in attendance. “He was asked, ‘How did this come about?’ and he said, ‘I’ll tell you how it happened. The president said, ‘I want to have an order banning Muslim entry into the country, but I wanna figure out a way to do it legally,’ as Rudy said, and he talked to experts and they concocted this scheme.”
Schneiderman said fighting the executive order is not just about politics and immigration, but about protecting the rule of law.
“This is not a challenge based on whether you’re liberal or conservative, this is a challenge to the role of the judiciary in our tripartite government to the fundamental notion established here many decades ago,” Schneiderman added. “That no one is above the law and that the president is still subject to review by the judiciary to ensure that he is not in violation of the Constitution.”
He predicted the Ninth Circuit Court will ultimately decide not to restore the executive order.
“I’m optimistic that they’re gonna uphold the ruling of the court in Washington,” he said. “They’re gonna stay this order. The order itself is constitutionally offensive but the way it was rolled out has created chaos.
Schneiderman extracted a $25 million settlement from the Republican leader just days after his election. In October 2016, Schneiderman sent a cease-and-desist letter to the Donald J. Trump Foundation. The attorney general’s office kept Trump from proceeding with plans to shut down his four nation before assuming the Oval Office since the investigation into the endowment was still underway.