Fourth and Ninth Circuits Uphold Rejection of Trump Travel Ban
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
The U.S. Court of Appeals for the Fourth Circuit has upheld a nationwide preliminary injunction rejecting a substantial portion of the Trump administration's revised executive order barring entry into the United States of people from certain countries.
Chief Judge Roger Gregory noted that the question for the court, distilled to its essence, was whether the Constitution protected plaintiffs' right to challenge the executive order, which "in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination." He noted that "[s]urely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another." He said that Congress granted the President broad power to deny entry to the United States, but that this power is not absolute. "It 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."
Among other things, the court took into account not just the text of the executive order but also the context of statements made by President Trump both before and after his election and assumption of office. For example, the court noted that on December 7, 2015, then-candidate Trump published a "Statement on Preventing Muslim Immigration" on his website that proposed "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." Among other things, the statement noted "great hatred toward Americans by large segments of the Muslim population." The court noted that this statement remained on President Trump's campaign website at least until February 12, 2017, and was highlighted on Twitter. On March 9, 2016, then-candidate Trump said, "I think Islam hates us," and renewed his call for a ban on Muslim immigration in a March 22, 2016, interview. And when asked about a tweet that said that calls to ban Muslims from entering the United States were offensive and unconstitutional, then-candidate Trump responded, "So you call it territories. OK? We're gonna do territories." In an interview a week later, he said, "I'm looking now at territories. People were so upset when I used the word Muslim. Oh, you can't use the word Muslim. Remember this. And I'm okay with that, because I'm talking territory instead of Muslim." With respect to people revering the part of the Constitution that guarantees religious freedom, he said, "I view it differently."
The court said, among other things, that it was "unmoved by the Government's rote invocation of harm to 'national security interests' as the silver bullet that defeats all other asserted injuries." Citing a 1967 case, United States v. Robel, the court noted that implicit in the term "national defense" is "the notion of defending those values and ideals which set this Nation apart….It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties…which makes the defense of the Nation worthwhile." National security "may be the most compelling of government interests," the court observed, "but this does not mean it will always tip the balance of the equities in favor of the government." The court noted that unconditional deference to a government agent's invocation of "emergency" has a "lamentable place in our history" and that the government's asserted national security interest appeared to be a "post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country." The court said it remained unconvinced that the relevant section of the executive order "has more to do with national security than it does with effectuating the President's promised Muslim ban."
Circuit Judge Wynn, concurring, noted that "[i]nvidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination." In this case, he said, the invidious discrimination is "layered under the guise of a President's claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their national origin." Laid bare, he said, "this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims," which he said contravenes the authority Congress delegated to the President under the Immigration and Nationality Act, and is unconstitutional under the Establishment Clause.
Several judges dissented. The government stated that it intends to appeal to the Supreme Court.