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
