Herring leads fight against Muslim ban on appeal

mark herringFollowing their amicus brief opposing the Trump administration’s request for a stay that would allow the second iteration of its Muslim ban to take effect, Attorney General Mark R. Herring and Maryland Attorney General Brian E. Frosh, again leading a coalition of seventeen states, have filed a new amicus brief urging the Fourth Circuit Court of Appeals to uphold the district court ruling that struck down the ban as unconstitutional.

The states’ brief explains the reasons that the district court’s decision should not be overturned on appeal, including:
Overwhelming and unrebutted evidenced of anti-Muslim animus;

  • The lack of evidence of a national security rationale
  • The significant harms that the ban would cause the states, their residents, and their institutions

“We’re continuing the fight because President Trump’s Muslim ban is so antithetical to our values as Virginians and Americans and so potentially damaging to our Commonwealth and our residents,” said Attorney General Herring. “I’m glad to work with Attorney General Frosh again and appreciate the support of our colleagues from around the country.”

The states outline for the court the considerable harms that would occur if the ban is allowed to go into effect, including harm to state colleges, universities, and medical institutions, reduced tax revenues and damage to state economies, harm to the medical care of residents, and harm to each state’s antidiscrimination laws and protections for religious freedom found in the Constitution of each of the filing states.

In urging the court to affirm the existing preliminary injunction against the ban, the attorneys general write:

“The Amici States urge the Court to affirm the preliminary injunction because (1) the district court correctly determined that Plaintiffs are likely to succeed in showing that § 2(c) has the purpose of excluding Muslims and therefore violates the Establishment Clause of the First Amendment; (2) the balance of hardship tilts decidedly in Plaintiffs’ favor because Defendants failed to adduce any evidence that they would be harmed by temporarily preserving the status quo that existed before EO-2; and (3) the public interest-including the interests of the States and their residents-strongly favors enjoining an unconstitutional executive order that fulfills the President’s campaign promise to prevent Muslims from entering the country.”

Joining Attorney General Herring and Attorney General Frosh on today’s brief are the attorneys general of California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Massachusetts, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington.

Previously, Attorney General Herring and Attorney General Frosh co-authored a brief joined by 15 other states urging the Fourth Circuit to reject the Trump Administration’s request to stay the district court injunction currently preventing the ban from going into effect. In urging the Court to continue the current injunction against the ban, the states made it clear that the Trump administration is unlikely to win their appeal; the public interest strongly favors a continued injunction against the stay; the Trump administration has not demonstrated the required “irreparable harm” that would entitle it to a stay; and States and their residents will face significant harm if the ban goes into effect.

Attorney General Herring has been among the national leaders in challenging President Trump’s ban, winning significant concessions in the revised order that protect Virginia residents from harm and winning the nation’s first and only preliminary injunction against the original travel ban. He also joined 15 of his fellow attorneys general in filing an amicus brief in support of Washington and Minnesota in their successful challenge to the first ban, as well as Hawaii’s successful challenge against the revised travel ban.