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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.


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