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9 Faulkner L. Rev. 1 (2017-2018)
Judicial Review and Subjective Intentions

handle is hein.journals/faulklr9 and id is 13 raw text is: JUDICIAL REVIEW AND SUBJECTIVE INTENTIONS Carson Holloway* I. INTRODUCTION In the biggest legal and constitutional controversy of 2017, President Donald Trump and several federal courts clashed over immigration and national security policy. Early in the new year, in one of the first major public policy determinations of his administration, President Trump issued an executive order temporarily halting immigration from several predominantly Muslim nations. I This step was necessary, the President contended, because the countries in question were especially vulnerable to being used as points of departure for terrorists seeking entry into the United States.2 Caution therefore counseled that immigration from these nations be suspended while the administration devised the more stringent screening procedures necessary to safeguard American security.3 The order was immediately challenged as unconstitutional, and those pressing this claim found a sympathetic ear in some corners of the federal judiciary.4 Some courts found that the executive order was in fact a ban on Muslim immigration into the United States. * As such, they held it likely violated the Establishment Clause of the Constitution's First Amendment.6 * Professor of Political Science, University of Nebraska at Omaha; Visiting Scholar, The Heritage Foundation's B. Kenneth Simon Center for Principles and Politics. Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017). 2 See Interview by David Muir with President Donald Trump, in Washington, D.C. (Jan. 25, 2017), http://abcnews.go.com/Politics/transcript-abc-news- anchor-david-muir-interviews-president/story?id-45047602. 3 Id. 4 See Darweesh v. Trump, 17 Civ. 480, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017); Tootkaboni v. Trump, 17-CV-10154, 2017 WL 386550 (D. Mass. Jan. 29, 2017). 5 Int'l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 562 (D. Md.), affd in part, vacated in part, 857 F.3d 554 (4th Cir.), vacated and remanded, 138 S. Ct. 353 (2017). 6 Id. at 565. 1

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