Court of Appeals upholds block of Trump's travel ban (Update: DOJ says it's headed to the Supreme Court)

The Fourth Circuit Court of Appeals has upheld a lower court injunction blocking Trump’s temporary travel ban from being enforced. From NBC 4 in New York:


The Richmond, Virginia-based 4th Circuit is the first appeals court to rule on the revised travel ban, which Trump’s administration had hoped would avoid the legal problems that the first version encountered.

“Congress granted the president broad power to deny entry to aliens, but that 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,” the chief judge of the circuit, Roger L. Gregory wrote.

The court first agrees with the plaintiffs that the executive order is being made in “bad faith,” i.e. that its stated purpose is not its real purpose. Having determined that Judge Gregory says the court is justified in “looking behind” the stated reason for the order to determine whether national security is really its primary purpose. From the decision:

The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed antiMuslim sentiment, as well as his intent, if elected, to ban Muslims from the United States. For instance, on December 7, 2015, Trump posted on his campaign website a “Statement on Preventing Muslim Immigration,” in which he “call[ed] for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on” and remarked, “[I]t is obvious to anybody that the hatred is beyond comprehension. . . . [O]ur country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.” J.A. 346. In a March 9, 2016 interview, Trump stated that “Islam hates us,” J.A. 516, and that “[w]e can’t allow people coming into this country who have this hatred,” J.A. 517. Less than two weeks later, in a March 22 interview, Trump again called for excluding Muslims, because “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” J.A. 522. And on December 21, 2016, when asked whether recent attacks in Europe affected his proposed Muslim ban, PresidentElect Trump replied, “You know my plans. All along, I’ve proven to be right. 100% correct.” J.A. 506.

As a candidate, Trump also suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion. On July 17, 2016, in response to a tweet stating, “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional,” Trump said, “So you call it territories. OK? We’re gonna do territories.” J.A. 798. One week later, Trump asserted that entry should be “immediately suspended[ed] . . . from any nation that has been compromised by terrorism.” J.A. 480. When asked whether this meant he was “roll[ing ]back” his call for a Muslim ban, he said his plan was an “expansion” and explained that “[p]eople were so upset when I used the word Muslim,” so he was instead “talking territory instead of Muslim.” J.A. 481.


Judge Gregory concludes this section of the ruling saying, “These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States.” He adds, “The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly.” Judge Gregory concludes the primary purpose of Trump’s executive order is to exclude people based on their religious beliefs:

EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs. We therefore find that EO-2 likely fails Lemon’s purpose prong in violation of the Establishment Clause.

Three judges joined a dissent to the majority ruling. They argue persuasively that the majority has invented a new interpretation which directly contradicts Supreme Court precedent:

If the majority’s understanding had been shared by the Supreme Court, it would have compelled different results in each of Mandel, Fiallo, and Din, as in each of those cases the plaintiffs alleged bad faith with at least as much particularity as do the plaintiffs here. In Mandel, the allegations were such that Justice Marshall, writing in dissent, observed that “[e]ven the briefest peek behind the Attorney General’s reason for refusing a waiver in this case would reveal that it is a sham.” Id. at 778 (Marshall, J., dissenting). In Fiallo, Justice Marshall, again writing in dissent, pointed to the fact that the statute in question relied on “invidious classifications.” Fiallo, 430 U.S. at 810 (Marshall, J., dissenting). And in Din, the plaintiffs argued that the consular decision should be reviewed because it fell within the “limited circumstances where the government provides no reason, or where the reason on its face is illegitimate.” Brief for Respondent at 31, Din, 135 S. Ct. 2128 (No. 13-1402), 2015 WL 179409. But, as those cases hold, a lack of good faith must appear on the face of the government’s action, not from looking behind it…

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. Mandel, Fiallo, and Din have for decades been entirely clear that courts are not free to look behind these sorts of exercises of executive discretion in search of circumstantial evidence of alleged bad faith. The majority, now for the first time, rejects these holdings in favor of its politically desired outcome.


The dissenters also say this process of “looking behind” the text to find reasons to undo an executive order has no “rational limit” and will give courts the power to overrule the executive based on any past statement they can point to:

Opening the door to the use of campaign statements to inform the text of later executive orders has no rational limit. If a court, dredging through the myriad remarks of a campaign, fails to find material to produce the desired outcome, what stops it from probing deeper to find statements from a previous campaign, or from a previous business conference, or from college?…

The danger of the majority’s new rule is that it will enable any court to justify its decision to strike down any executive action with which it disagrees. It need only find one statement that contradicts the stated reasons for a subsequent executive action and thereby pronounce that reasons for the executive action are a pretext. This, I submit, is precisely what the majority opinion does.

The decision will almost certainly be appealed to the Supreme Court which will have to decide which interpretation of precedent is correct.

Update: As expected, this is going to the Supreme Court. From Politico:

Attorney General Jeff Sessions said the administration was preparing to follow through on Trump’s promises to take the issue to the Supreme Court.

“The Department of Justice strongly disagrees with the decision of the divided court, which blocks the President’s efforts to strengthen this country’s national security,” Sessions said in a statement. “The President is not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk to the United States….This Department of Justice will continue to vigorously defend the power and duty of the Executive Branch to protect the people of this country from danger, and will seek review of this case in the United States Supreme Court.”


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