Travel Ban Blocked Again, Possible Supreme Court Showdown

An en banc panel of the U.S. Court of Appeals for the Fourth Circuit upheld an injunction against President Donald Trump’s executive order curtailing travel and immigration from seven Muslim-majority countries Thursday.

The 10-3 majority, in a 67-page opinion, affirmed the decision of the United States District Court for the District of Maryland, in essence holding that even an executive order that makes no mention of Islam in its text can be invalidated for violating the First Amendment’s Establishment Clause because of comments Trump and his associates made during and after the 2016 presidential election.

Calling the Establishment Clause a “untiring sentinel for the protection of one of our most cherished founding principles,” Chief Judge Roger Gregory’s opinion for the court calls the travel ban “an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

“Congress granted the President broad power to deny entry to aliens, but that power is not absolute,” Gregory writes, discounting that the wide latitude given to the President under the Immigration and Nationality Act to deny entry to classes of travelers and immigrants on national security grounds justifies President Trump’s executive order.

The majority then launches into a litany of quotes from President Trump, his advisers, and his campaign website made during and after the election season of 2016, as proof that the travel ban represents a government “purpose” to favor one religion over another. Relying on Establishment Clause precedent that has never been applied in the immigration context, the court decided that the administration’s proffered purpose of keeping Americans safe from terrorism was a mere pretext for disfavoring the Islamic faith.

One quote used to establish an unacceptable purpose was that of then-Trump campaign spokeswoman Katrina Peirson on CNN that, “I think Islam hates us … [W]e can’t allow people coming into the country who have this hatred … [w]e’ve allowed this propaganda to spread all through the country that [Islam] is a religion of peace.”

The court dismisses the national security rationale for the order, conducting its own inquiry into the efficacy of the travel ban in protecting Americans. The majority cites “former National Security Officials” saying the order serves “no legitimate national security purpose” and that “there is no evidence of any new security risks emanating from these countries.”

The majority also gave credence to the claims of some of the Muslim plaintiffs, represented by a litany of progressive legal groups led by the American Civil Liberties Union, that the existence of the travel ban causes them irreparable damages by causing “them feelings of disparagement and exclusion” or feeling “isolated and disparaged in [their] community.” They cite one plaintiff who claimed that his wife, who wears the hijab in public “sense[s] a lot of hostility from people” and that his hijab-wearing neices “say that people make mean comments and stare at them for being Muslim.”

Each of the three dissenting Judges filed separate dissenting opinions and joined in each others’. Judge Paul Niemeyer, relying on precedent that holds that the foreign affairs context in which the executive order operates is the apex of executive power, chatised the majority for its refusal to limit its inquiry to the text of the order itself:

In looking behind the face of the government’s action for facts to show the alleged bad faith, rather than looking for bad faith on the face of the executive action itself, the majority grants itself the power to conduct an extratextual search for evidence suggesting bad faith, which is exactly what three Supreme Court opinions have prohibited.

Thursday’s ruling represents a ruling on the merits of the case and cements the injunction preventing the order from coming into effect. The only avenue remaining for the administration to continue its defense of the order is a petition for a writ of certiorari from the Supreme Court of the United States. This would set up a final showdown over the constitutionality of the travel ban before the nation’s highest court.

As the travel ban was always a temporary measure only to apply for 90 days, a term set to expire in June, the government will likely have to petition the Supreme Court on an emergency basis in order to have the Court reconvene to hear arguments before the case becomes moot.


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