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Fourth Circuit Upholds Injunction Against Trump’s Muslim Travel Ban

constitution-preamble-gavel

The Fourth Circuit Court of Appeals has handed the Trump Administration another defeat, ruling that the injunction against its Muslim travel ban should remain in place:

A federal appeals court on Thursday left in place the freeze on President Trump’s revised entry ban, handing the administration another legal setback in its efforts to block the issuance of new visas to citizens of six Muslim majority countries.

The ruling from the U.S. Court of Appeals for the 4th Circuit means the Trump administration still cannot enforce its travel order that the government says is urgently needed for national security.

In its 10 to 3 decision, the Richmond-based court said the president’s broad immigration power to deny entry into the U.S. is not absolute and sided with challengers, finding that the travel ban “in context drips with religious intolerance, animus and discrimination.”

The president’s authority, the court said, “cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation,” according to the majority opinion written by Chief Judge Roger L. Gregory, and joined in part by nine other judges.

The 4th Circuit declined to lift an order from a Maryland federal judge, who ruled against the travel ban in March and sided with opponents who said the ban violates the Constitution by intentionally discriminating against Muslims. The ruling leaves the injunction in place and means citizens from Iran, Sudan, Somalia, Yemen, Syria and Libya can continue entering the United States.

Even if the appeals court had sided with the Trump administration, the president’s order would have remained on hold because of a separate opinion from a federal judge in Hawaii. To put the ban in motion, the Justice Department would also have had to win at the U.S. Court of Appeals for the 9th Circuit, which heard oral arguments on May 15 in the government’s appeal of the Hawaii decision.

Federal immigration law gives the president broad immigration powers and government lawyers urged the court to defer to the president and not second guess his judgment.

But the ruling from the 4th Circuit was the latest in a series of defeats for the administration. President Trump rewrote the entry ban after the 9th Circuit in February refused to lift an earlier injunction.

The revised version would temporarily suspend the U.S. refugee program and halt for 90 days the issuance of new visas to travelers from the six countries while the administration reviews its screening process.

The next step for the Trump administration would be to ask the Supreme Court to stay the 4th Circuit’s decision. Such a request usually requires showing that the government would suffer irreparable harm if the lower court decision was allowed to stand. The passage of time since the executive order was first issued might make that difficult.

A challenge to the 4th Circuit decision would go to Chief Justice John G. Roberts Jr., who receives emergency petitions from that court, and then be referred to the rest of the justices. It would take five votes to stay the decision.

The administration might also wait until it receives a ruling from a panel of the U.S. Court of Appeals for the 9th Circuit. Those judges are considering a ruling from a judge in Hawaii who put the travel ban on hold. The full 9th Circuit upheld a freeze on Trump’s previous executive order

More from The New York Times:

WASHINGTON — A federal appeals court refused Thursday to reinstate President Trump’s revised travel ban, saying it “drips with religious intolerance, animus and discrimination.”

The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was a fresh setback for the administration’s efforts to limit travel from several predominantly Muslim countries.

The vote was 10 to 3. The court divided along ideological lines, with the three Republican appointees in dissent.

Writing for the majority, Chief Judge Roger L. Gregory said Mr. Trump’s statements on the campaign trail concerning Muslims showed that the revised order was the product of religious hostility. Such discrimination, he wrote, violates the First Amendment’s ban on government establishment of religion.

“Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States,” Judge Gregory wrote. He cited, as an example, a 2015 statement calling for “a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.”

The Trump administration had urged the appeals court to ignore the statements as loose language made before the president assumed office. But Judge Gregory said the court could take account of the comments.

“The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action,” Judge Gregory wrote.

In dissent, Judge Paul V. Niemeyer said that the majority had made a grave error in considering the comments to interpret the executive order.

“Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds,” he wrote. “They are often shorthand for larger ideas; they are explained, modified, retracted and amplified as they are repeated and as new circumstances and arguments arise. And they are often ambiguous. A court applying the majority’s new rule could thus have free rein to select whichever expression of a candidate’s developing ideas best supports its desired conclusion.”

The administration had argued that consideration of campaign rhetoric would chill political speech protected by the First Amendment. That was not a problem, Judge Gregory said.

“To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint,” he wrote.

(…)

In his dissent, Judge Niemeyer wrote that the law did not permit judges to second-guess a president’s national security judgments.

But Judge Gregory wrote that courts had a role to play.

“Although the Supreme Court has certainly encouraged deference in our review of immigration matters that implicate national security interests,” he wrote, “it has not countenanced judicial abdication, especially where constitutional rights, values, and principles are at stake.”

It was more than plausible, he added, that the revised order’s “stated national security interest was provided in bad faith, as a pretext for its religious purpose.”

“The government has repeatedly asked this court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers,” Judge Gregory wrote. “We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.”

As Ian Millhiser notes, it was largely Trump’s own words that doomed the Executive Order:

The primary tension in the Muslim ban cases is between the First Amendment’s prohibition on laws “respecting an establishment of religion, or prohibiting the free exercise thereof,” and a 1972 Supreme Court decision holding that the courts should typically defer to the executive branch regarding determinations about who is allowed in the country.

In Kleindienst v. Mandel, the Supreme Court called for deference to the executive so long as immigration officials offer a “facially legitimate and bona fide” reason why they are excluding particular foreign nationals. This, Judge Gregory notes, “sets a high bar for plaintiffs seeking judicial review of a constitutional challenge to an immigration action.”

But, while the bar is high, it is not insurmountable. Rather, Mandel still establishes that the government’s stated reason for excluding an individual must be “bona fide.” That is, it cannot be offered in “bad faith.”

When the president lies, the courts do not owe him deference.

Judges are not mind readers, so, as Gregory acknowledges, foreign nationals will rarely be able to overcome Mandel and demonstrate that the government’s stated reason for keeping them out of the country was offered in bad faith. But the Muslim ban presents an exceptional case — a case where the president spent months building a pile of evidence that foreign nationals caught by the Muslim ban could use against the president.

Among other things Trump, “call[ed] for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” He said that “Islam hates us,” and that “[w]e can’t allow people coming into this country who have this hatred.” He even openly admitted that he would try to disguise the Muslim ban by having it appear to be a ban on people from certain countries and not a Muslim ban per se.

Additionally, Judge Gregory places a great deal of weight on the fact that Trump did not consult with his own agencies before announcing a sweeping change to the nation’s foreign policy. The Trump administration’s claim that the Muslim ban was necessary for national security reasons “is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, and that those agencies only offered a national security rationale after [this executive order] was enjoined,” Gregory wrote.

Indeed, “internal reports from DHS contradict” Trump’s argument for the ban, “with one report stating that ‘most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.'”

So Trump lost because of his big mouth and his inability to do what a competent president would have done: run his new policy by the people in government who actually know what they are talking about. Were Trump only slightly better at his job, it is likely that the Muslim ban would have survived.

The Fourth Circuit’s opinion relies on largely the same conclusions as those reached by Seattle-based Federal District Court Judge James Robart, who was later upheld by the Ninth Circuit Court of Appeals, did when he issued the very most sweeping ruling blocking the first draft of the Executive Order. The Trump Administration ultimately withdrew that first version of the Executive Order and a revised Executive Order that was allegedly intended to fix the problems that Robart and several other Federal Judges had found in the original order. The main changes of the revised order consisted of exempting Permanent Residents and those who already had visas from the ban, as well as dropping Iraq from the list of nations subject to the ban. When it released the revised order, the Administration insisted that this version more than adequately addressed any legal problems that the first order may have had, and predicted that it would be upheld in Court just as assuredly as the first one was struck down. As it turned out, their changes have proven to be woefully inadequate, and the order continues to have serious constitutional and legal problems that are proving to be impossible for the Administration to address, largely because it would appear that it is the words of the President himself that are proving to be the Administration’s greatest enemy. As several Judges have now observed, these words provide clear evidence that there was discriminatory intent behind the order, and that the words of both the President himself and advisers to Trump such as Rudy Giuliani make it clear that the intent of the order was to ban Muslims. Additionally, the fact that the Administration remains unable to provide a factual basis for its claim that the six nations covered by the ban are the source of a serious national security threat makes the argument that the ban is based on a national security need seem less than credible, to say the least.

The majority of the Judges largely agree with the finding of the District Court Judge in Maryland who imposed the injunction. As the majority opinion puts it, it is clear that the order unconstitutionally discriminates on the basis of religion by signaling out majority Muslim nations for a ban that isn’t supported by the evidence on the record. clearly and unconstitutionally discriminates on the basis of religion in violation of the First Amendment by singling out majority Muslim nations for a ban that simply cannot be supported by the evidence. As noted, the majority relies heavily on the rhetoric we heard from Trump during the campaign, and on statements made by the Administration and Trump surrogates such as Rudy Giuliani that the motivation behind the ban was to come as close as possible to a total ban on Muslims without violating the law. Additionally, the Court notes that the Court provides no evidence on the record to support its claims about the national security risks supposedly supporting the decision to ban immigration from the majority Muslim nations at issue in this case. As a result, the Court found that the ban must remain in place.

Since this case was heard by the full Fourth Circuit rather than just a three-judge panel, the next step from here would be an appeal directly to the Supreme Court of the United States. We are also, of course, awaiting a decision in a similar case from the Ninth Circuit Court of Appeals, where a three-judge panel heard oral argument in the appeal of a case out of Hawaii just under two weeks ago. Whether the Federal Government will file an immediate appeal, or wait for a result in the Ninth Circuit is unclear. For now at least, though, the injunction will remain in place until lifted by a higher court.

Here’s the opinion:

IRAP Et Al v. Trump Et Al Court of Appeals by Doug Mataconis on Scribd

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. mannning says:

    Perhaps Trump could have used the words Islamic Terrorists from those nations in his ban. How one could find that out for the individuals concerned is a bit of a problem, but extreme, extreme vetting might help… or not.

    Like or Dislike: Thumb up 0 Thumb down 7

  2. Pch101 says:

    “Extreme vetting” sounds like something that you’d find on a bottle of floor cleaner.

    Trump has been in office for more than 100 days. If his minions had a milligram of integrity, then they would be upset that Trump hasn’t put together his grand plan for proper screening. You don’t need a travel ban to do that.

    Like or Dislike: Thumb up 7 Thumb down 0

  3. Hal_10000 says:

    @Pch101:

    Bingo! He said this was going to be a 90-day temporary ban so they could revisit their procedures. Why aren’t they revisiting them? Because they were never going to. It’s was a symbolic move with no substance behind it. After 90 days, he would have either renewed the ban or let it drop and proclaim victory.

    Like or Dislike: Thumb up 12 Thumb down 2

  4. Bob The Arqubusier says:

    One of the ACLU lawyers who argued this case stated, in court, that the very same order would be perfectly legal if “another candidate” had won and issued it.

    Is this the first time that a court has ruled that the actual letter of an order is inferior to the words spoken by the signer of said order? Words spoken when the signer has no legal authority and not even declared under oath?

    It sounds to me that, based on statements made while a candidate, Trump has been stripped of legal, Constitutional powers of the presidency. That he can’t even touch certain issues because of statements made while not holding any public office.

    I would be terribly impressed and grateful if anyone could cite a precedent for such a thing, or even a legal rationale for such an act.

    Like or Dislike: Thumb up 3 Thumb down 15

  5. Paul L. says:

    New Fourth Circuit precedent IRAP Et Al v. Trump Et Al: Illegal Aliens have the same rights as US Citizens..

    Judgement against Trump ADMITS it looked for ANY reason to call ban unconstitutional!

    If we limited our purpose inquiry to review of the operation of a facially neutral order, we would be caught in an analytical loop, where the order would always survive scrutiny.

    It appears as if the ruling says if they just looked at the order, it would be constitutional, so they had to look beyond the order itself.

    Like or Dislike: Thumb up 1 Thumb down 15

  6. michael reynolds says:

    @Bob The Arqubusier:
    Hey, guy formerly known (and banned) as J-E-N-O-S, you still haven’t told us which of Trump’s rationales for firing Comey you believe.

    Answer.

    Like or Dislike: Thumb up 9 Thumb down 0

  7. michael reynolds says:

    @Bob The Arqubusier:

    Trump didn’t offer evidence to support his rationale. Don’t blame the court because you elected an incompetent, loudmouthed bigot.

    Like or Dislike: Thumb up 11 Thumb down 0

  8. Pch101 says:

    Trumpistas and the Constitution don’t mix.

    Like or Dislike: Thumb up 3 Thumb down 0

  9. Bob The Arqubusier says:

    @michael reynolds: Rude and unresponsive. I’ll decline to respond, and take your non-answer as an admission that you have nothing.

    Poorly-rated. Helpful or Unhelpful: Thumb up 0 Thumb down 18

  10. michael reynolds says:

    @Bob The Arqubusier:

    Gibberish as usual, ‘J,’ and it’s fun to see you try and disguise your prose. But you don’t have the skills.

    Answer the question or I email James and Doug and out you.

    Like or Dislike: Thumb up 4 Thumb down 0

  11. Bob The Arqubusier says:

    @michael reynolds: I believe the appropriate response is “publish and be damned.”

    If that’s how you choose to deal with disagreeing viewpoints, you show your own insecurity and immaturity.

    The court’s ruling is utterly indefensible, and you help prove that by refusing to defend it.

    But go whine to Mommy and Daddy that the mean person keeps busting your fantasies. And maybe, if they’re nice, they’ll give you a cookie for being such a good little tattletale.

    Like or Dislike: Thumb up 0 Thumb down 12

  12. Turgid Jacobian says:

    @Hal_10000: accidentally down voted… They should have been working if they meant their justifications

    Like or Dislike: Thumb up 1 Thumb down 0

  13. David M says:

    I’m pretty sure the ruling is defensible, given it was a 10-3 decision, and those 10 judges defended their decision. And it also was upholding previous decisions, so it’s been defended for a while.

    Besides, it’s not like it’s a difficult decision to defend. There is no national security benefit to the ban and Trump has admitted its purpose is discriminatory.

    However, judges are probably not taking Trump’s oath of office seriously, so they are not hesitating to issue rulings against him. It may be a new era after Trump, where holding the office is as meaningless as the words he currently says. Trump is bad news for many reasons, this is just another example.

    Like or Dislike: Thumb up 4 Thumb down 0

  14. DrDaveT says:

    @David M:

    There is no national security benefit to the ban

    I repeat: 100 dead and 10,000 injured EVERY DAY on the highways. If the threat from terrorism can’t get within 2 orders of magnitude of something that nobody wants to hear about, there is no “urgent action” needed.

    Like or Dislike: Thumb up 5 Thumb down 0

  15. Bob The Arqubusier says:

    @David M: The list is of six countries: five of which essentially have no functioning governments that can properly vet people. (Iraq, Libya, Somalia, Syria, and Yemen.)

    This sixth is Iran. ‘Nuff said, I trust.

    The vast majority of Muslim nations? Not mentioned.

    The vast majority of Muslims? Not affected.

    Just five countries with huge radical Islamic terrorist problems, and one country that is itself a huge radical Islamic terrorist problem.

    And, to boot, all countries that were found to be troublesome by the Obama administration.

    Finally, just for fun, Syria, Iraq, Yemen, and Libya are Arabic people; Somalis are African, and Iran is Persian. So there is some ethnic diversity involved.

    Like or Dislike: Thumb up 0 Thumb down 14

  16. michael reynolds says:

    @Bob The Arqubusier:

    Why won’t you answer the Comey question?

    Why?

    I’ll help you out: it’s called ‘consciousness of guilt.’ In other words, you know you’re defending lies. And you compound dishonesty with cowardice. Which makes you white noise in a political discussion.

    You are a liar. And a coward.

    Like or Dislike: Thumb up 6 Thumb down 0

  17. Bob The Arqubusier says:

    @DrDaveT: Perhaps I’ve just been fortunate, but I’ve never felt like the other drivers out there were trying to kill me.

    It’s happened a few times, of course, but most of those accidents were… accidental.

    A couple of notable exceptions would be Mr. Khalid Masood, who ran down people in London last March, and Mohammed Reza Taheri-azar, on the UNC campus in 2006. Shall we blame the vehicles they used?

    Like or Dislike: Thumb up 0 Thumb down 13

  18. Bob The Arqubusier says:

    @Bob The Arqubusier: And by “happened,” I mean “it’s been deliberate.”

    Like or Dislike: Thumb up 0 Thumb down 5

  19. David M says:

    @Bob The Arqubusier:

    Including Iran proves my point, not yours.

    Like or Dislike: Thumb up 7 Thumb down 0

  20. Bob The Arqubusier says:

    @michael reynolds: In order to “defend lies,” dear fellow, one must actually defend something.

    You want to change the subject from the topic at hand, and refuse to address the one presented by the author. Plus, you’re still being rude.

    So I feel no shred of compunction to indulge your games. You’re simply not that compelling.

    Like or Dislike: Thumb up 0 Thumb down 7

  21. Bob The Arqubusier says:

    @David M: My point is that Iran is the biggest promoter of terrorism in the world, and their government has declared itself our enemy at every opportunity. THey might have even invented a few opportunities. Telling their government “we would rather not have any more of your people for just a wee bit, thanks” is just common sense.

    Which, come to think, might explain why so many of the left find it so repugnant.

    Like or Dislike: Thumb up 0 Thumb down 13

  22. David M says:

    And yet somehow there hasn’t been a rash of attacks by Iranians here in the US…or from the other countries. I’m confused how it could be so critical if there isn’t actually any danger.

    Like or Dislike: Thumb up 6 Thumb down 0

  23. Pch101 says:

    The terror threat is so horrific and real that Trump’s lawyers can’t prove that it exists.

    They would probably have better luck if they made their arguments to Breitbart instead of the appeals court.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. Bob The Arqubusier says:

    @David M: Apart from the aforementioned Mohammed Reza Taheri-azar, of course.

    And all the Iranian agents fomenting death and chaos in Iraq, Syria, Lebanon, et al.

    Apart from that…

    Like or Dislike: Thumb up 0 Thumb down 11

  25. Bob The Arqubusier says:

    @Pch101: Apparently that recent unpleasantness in Manchester escaped your notice.

    Like or Dislike: Thumb up 0 Thumb down 10

  26. Pch101 says:

    I could have sworn that England was a different country. Perhaps something changed in the last 20 minutes and I missed it.

    In any case, the alleged Manchester bomber was born in the UK. Is there a travel ban on them?

    Like or Dislike: Thumb up 11 Thumb down 0

  27. Grewgills says:

    @Bob The Arqubusier:
    How many deaths by terrorism have been caused on US soil by immigrants or visa holders from the countries listed in the ban?
    How many deaths by terrorism have been caused on US soil by immigrants or visa holders from Saudi Arabia?
    Where is the logic in banning the former and welcoming the latter?

    Like or Dislike: Thumb up 9 Thumb down 0

  28. David M says:

    That’s not anything to do with state sponsored terrorism, and he came here when he was 2 and was a US citizen.

    Anyway, we know the ban wasn’t necessary, as it was only supposed to last for 90 days while the Trump Administration updated the screening process. Its been enough time that they would have finished if they were actually serious.

    Anyone still defending it…seems like they are defending the idea of discriminating against Muslims for absolutely no reason. I wonder if there’s a word for those people.

    Like or Dislike: Thumb up 5 Thumb down 0

  29. Bob The Arqubusier says:

    @Grewgills: I apologise. I forgot the ancient wisdom of “work to prevent the last attack, and don’t worry about the next one.”

    @David M: There are 51 nations that have a Muslim majority. The list covers six nations. And five of them have very large problems with Muslim militants and barely functional governments.

    Who, pray tell, in Syria would you contact to get background information on a potential immigrant? Or in Yemen? Somalia? Libya?

    I may grant you Libya. Morally, we are at least partly responsible for the chaos there. Getting rid of Muammar Gaddafi was Hillary’s pet project, with Obama’s support, so we own that a bit. They broke it, we bought it.

    Like or Dislike: Thumb up 0 Thumb down 14

  30. Pch101 says:

    By keeping Iranians out of the United States, Brits won’t blow up their own country.

    Damn, you’d have to be a complete moron Republican to believe that, now wouldn’t you?

    Like or Dislike: Thumb up 7 Thumb down 0

  31. Matt says:

    @Bob The Arqubusier: Really Iran? not Saudi Arabia which pushes the radical Sunni Wahhabism which is the basis for ISIS, Al Queda, and basically every single other wannabe big terrorist group? You know Saudi Arabia where 15 of the 19 hijackers who committed 9/11 came from? You remember Osama bin Laden the mastermind of 9/11 and other big terrorist attacks came from Saudi Arabia and the Taliban were extensively funded by the Saudis (and us to a degree)??

    I shouldn’t be surprised as you were probably one of the people screaming WAG THE DOG when Clinton was lobbing tomahawk missiles at Al Qaeda….

    Like or Dislike: Thumb up 7 Thumb down 0

  32. DrDaveT says:

    @Bob The Arqubusier:

    Perhaps I’ve just been fortunate, but I’ve never felt like the other drivers out there were trying to kill me.

    And this matters… why?

    I deliberately chose traffic deaths and injuries (as opposed to, say, coal mining deaths) because pretty much everyone is at equal risk all the time. It doesn’t matter how good a driver you are; you have no defense against the drunk who crosses the center line, or the truck that jackknifes in front of you.

    Intent is irrelevant, until the people deliberately trying to kill you become more of a threat than, say, lightning. Or falling in the shower. Or accidentally inhaling your food.

    …But thank you for making it clear that your motivation here is that you are a sniveling coward.

    Like or Dislike: Thumb up 12 Thumb down 0

  33. Mr. Bluster says:

    Republican President Pud. What a Dummkopf!

    Der Spiegel is responding to the reports that Donald Trump said, in his private meetings that

    “The Germans are evil, very evil.” *

    “Look at the millions of cars they sell in the US. We will stop that.”
    ………………………..
    *or “bad, very bad.” “Die Deutschen sind böse, sehr böse” can be translated either way. Whatever it was that Trump said, he said it in English. Our sources are German. My guess would be that Trump said the Germans were “bad.” That would fit his vocabulary.

    the EU side was horrified at the extent of the Americans’ lack of awareness of trade policy. Apparently, it was unclear to the guests that the EU countries concluded trade agreements only jointly.

    Der Spiegel: “It’s Time to Get Rid of Donald Trump”

    Like or Dislike: Thumb up 2 Thumb down 0

  34. Daryl's other brother Darryl says:

    @michael reynolds:
    @Bob The Arqubusier:

    Hey, guy formerly known (and banned) as J-E-N-O-S

    I wondered why the collective IQ of the site seemed to have dropped a hundred points…that explains it. The self-professed free-loader is back. Joy.

    Like or Dislike: Thumb up 2 Thumb down 0

  35. Mikey says:

    @Mr. Bluster: Keep in mind that damaging the relationship between America and Germany has been a Russian objective since about 1945.

    And by accident or design, Trump is playing that song very well.

    Like or Dislike: Thumb up 4 Thumb down 0

  36. CB says:

    So nothing much has changed here, huh.

    Like or Dislike: Thumb up 0 Thumb down 0