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Albert Cited in Brief Against Trump Ban on Immigrants

Constitutional scholar's research used in arguing executive order violates Establishment Clause.


BC Law Professor Richard Albert was cited in Washington State’s brief in support of continuing the nationwide injunction of President Trump’s executive order on immigration. Taken from Professor Albert’s paper in the Chicago-Kent Law Review, “The Constitutional Politics of the Establishment Clause,” the cited portion is in support of the argument that the travel ban violates the Establishment Clause.

The President’s January 27 executive order barred refugees and travelers from seven predominantly Muslim countries from entering the United States. The following week, US District Court Judge James Robart issued a temporary nationwide restraining order blocking the ban. The Department of Justice, in turn, asked the San Francisco-based US Court of Appeals for the Ninth Circuit to reverse Robart’s order; that hearing was held February 7.

In his article, Albert writes that “the modern decline of taxpayer standing has curiously derived from the same heightened solicitude for religion, recognizing that religion is special, and that the federal government should keep its hands off.” The quote summarizes his views on allowing religion to return to government control instead of remaining localized within the individual—the consequences of which could lead to a foundational relapse of the Establishment Clause.

The brief captures Albert’s argument that the Establishment Clause was meant to protect states by preventing the federal government from adopting a national religion.

BC Law Professor Kari Hong has also been active on this issue. Hong, who has argued more than 100 cases in front of the Ninth Circuit in her career, has been quoted in media outlets such as CNN, USA Today, and the Boston Herald, among others.

The three-judge panel from the Ninth Circuit is expected to rule shortly.