Fourth Circuit Strikes Down Trump’s Muslim Travel Ban
Another day, another Court ruling against the Trump Administration.
Once again, President Trump has suffered another legal setback in his effort to enforce a ban on travel from six majority Muslim countries in court. This time, it comes from the Fourth Circuit Court of Appeals in Richmond, Virginia:
WASHINGTON — A second federal appeals court ruled on Thursday against President Trump’s latest effort to limit travel from countries said to pose a threat to the nation’s security.
The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., will have no immediate practical impact. The Supreme Court agreed last month to hear an appeal from a broadly similar decision from the Ninth Circuit, in San Francisco.
In December, in a sign that the Supreme Court may be receptive to upholding Mr. Trump’s latest order, the court allowed it to go into effect as the two cases moved forward.
The cases concern Mr. Trump’s third and most considered effort to make good on a campaign promise to secure the nation’s borders. But challengers to the latest ban, issued as a presidential proclamation in September, said it was tainted by religious animus and not adequately justified by national security concerns.
The ban restricts travel from eight nations, six of them predominantly Muslim: Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela. The restrictions vary in their details but, for the most part, citizens of the countries are forbidden from emigrating to the United States and many of them are barred from working, studying or vacationing here.
The Fourth Circuit, by a 9-to-4 vote, ruled that the latest ban, like an earlier one, most likely violated the Constitution’s Establishment Clause, which forbids religious discrimination by the government. The majority based its conclusion in large measure on statements Mr. Trump has made as a candidate and while in office.
The Ninth Circuit, by contrast, ruled on statutory grounds, saying that Mr. Trump had exceeded the authority Congress had given him over immigration and had violated a part of the immigration laws barring discrimination in the issuance of visas.
The Supreme Court will consider both the constitutional and statutory arguments in the appeal from the Ninth Circuit’s decision, which is likely to be heard in April.
Writing for the majority in Monday’s decision, Chief Judge Roger L. Gregory said that judicial second-guessing of the president was a delicate matter but was required in this case.
“Our constitutional system creates a strong presumption of legitimacy for presidential action, and we often defer to the political branches on issues related to immigration and national security,” Judge Gregory wrote. “But the disposition in this case is compelled by the highly unusual facts here.”
“Plaintiffs offer undisputed evidence that the president of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States,” he wrote.
In dissent, Judge Paul V. Niemeyer said the majority had made a serious mistake in considering Mr. Trump’s political comments to interpret his executive order.
“The public debate over the administration’s foreign policy and, in particular, its immigration policy, is indeed intense and thereby seductively tempts courts to effect a politically preferred result when confronted with such issues,” Judge Niemeyer wrote. But he added that maintaining public respect for federal courts “calls for heightened discipline and sharpened focus on only the applicable legal principles to avoid substituting judicial judgment for that of elected representatives.
As noted above, while the grounds were slightly different, this ruling is largely similar to the one handed down in December by a three-judge panel of the Ninth Circuit Court of Appeals which upheld a ruling made by a Federal District Court in Hawaii. It also comes about two months after the Supreme Court lifted the temporary injunction that had been placed on enforcement on the new version of the travel ban. This allowed it go into effect pending further rulings, allowing it to go on into effect pending further rulings in the lower courts. Last month, the Supreme Court accepted the Ninth Circuit case for appeal, and it is expected that there will be a hearing on that appeal in April during the Court’s final sitting of the current term. The rulings from the two District Court judges, one in Maryland and one in Hawaii, came just one day before the revised indefinite travel ban was set to go into effect. Under the new version of the ban, travel to the United States was barred to virtually everyone from Iran, Libya, Syria, Yemen, Somalia, and Chad, all six of which are majority Muslim nations. The order also banned travel to the United States from North Korea and barred certain individuals with ties to the government of Venezuela from traveling to the United States. As I noted when the revised order was released, the addition of Chad was somewhat odd given the fact that this nation had been working with the U.S. for years in the fight against Boko Haram and other African terror groups and the fact that Chad itself has not been a significant source of terrorism. The other additions to the list, North Korea, and Venezuela, meanwhile, appeared at the time to be a deliberate diversion given the fact that there is essentially no immigration of any kind from North Korea into the United States and the limits on travel from Venezuela only apply to a handful of people. The clear intent of the ban, then, was to target mainly the majority Muslim nations on the list.
That revised ban was challenged in Court, and decisions were issued by both courts nearly simultaneously. As both judges found in their respective opinions, this new order adds significantly to the temporary ban issued in late January which was blocked by a Federal District Court Judge in Washington state and the Ninth Circuit Court of Appeals earlier this year. After those orders, the Administration issued a revised ban that purported to address the problems pointed out in the initial order. That order purported to make certain changes to the bill but was itself struck down both by Federal Judges across the nation and by the Fourth and Ninth Circuit Courts of Appeal. In June, the Supreme Court issued a ruling regarding the Trump Administration’s Executive Order that banned travel from six predominantly Muslim nations that upheld the ban in some respects but also ruled that it could not be applied to all immigrants from these nations. Specifically, the Court ruled that exceptions must be made for people with valid visas, and those with bona fide family or business connections to the United States, although it didn’t specify what it meant by that. The injunctions that were issued by these Judges were later upheld by both the Fourth and Ninth Circuit Courts of Appeal, at which point the Trump Administration appealed to the Supreme Court.
The most significant difference between the Ninth and Fourth Circuit opinions, of course, is the fact that the Fourth Circuit, which heard the case as a full court rather than via a three-judge panel, found that in addition to violating certain statutory provisions of the Administrative Procedure Act, the ban violates the Establishment Clause of the First Amendment due to its effort to discriminate primarily against Muslims. In reaching this ruling, the Court did what several other courts who have ruled on both the travel ban and other actions by the Trump Administration and point to statements that the President made during the campaign and since becoming President, primarily through his Twitter feed. As the dissenting Judges point out, though, it’s not at all clear that this is or should be a legally tenable position on which to base a decision. When presented with legislation or an Executive Order like the travel ban, a Court generally ought to base its decisions only one what’s in the document or law itself and the applicable legal standard. Personally, I think you can make a good Establishment Clause argument against the travel ban without having to cite things that Donald Trump said as a candidate or what he has said on Twitter. In relying on these statements in its ruling, the Fourth Circuit may have made it far easier for the Supreme Court to overturn its decision should it even get that far.
What happens from this point is somewhat unclear. The Federal Government will no doubt seek to appeal this case to the Supreme Court and, given the fact that they’ve accepted the Ninth Circuit case already, the Justices are likely to accept it for appeal. However, given the fact that a briefing schedule has already been established in the Ninth Circuit case it’s not clear that this case can just easily be shoe-horned into the existing appeal so that the cases can be argued simultaneously. One option would be for the Court to delay oral argument in both cases until the October 2018 term, although that seems unlikes. Another would be for the Court to hold the Fourth Circuit case pending the ruling on the Ninth Circuit case. If the travel ban is upheld in whole or in part in that case, it could make the Fourth Circuit decision moot, or the Court may remand the case for further consideration by the Fourth Circuit in light of the Supreme Court’s ruling. Finally, of course, the Supreme Court could prove me wrong and merge the Fourth Circuit case into the Ninth Circuit case and hear both cases at the same time, perhaps by delaying the hearing until a later time in the term not currently scheduled for oral argument.
For the moment, though, this ruling stands and it is yet another legal setback for a Trump Administration that has suffered a number of such setbacks in its first year in office.
Here’s the opinion: