Trump’s travel ban ‘drips with religious intolerance,’ says en banc appeals court; injunction sticks

Immigration Law

4th Circuit

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia.

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Updated: An en banc federal appeals court on Thursday affirmed a nationwide injunction blocking President Donald Trump’s revised travel ban from taking effect. The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals ruled in a 10-3 decision (PDF).

Trump’s executive order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination,” Chief Judge Roger Gregory wrote for the majority.

The decision was yet another setback for Trump’s efforts to limit travel into the United States by people from several predominantly Muslim countries, report the New York Times and the Washington Post.

Later Thursday, U.S. Attorney General Jeff Sessions announced that the Department of Justice would appeal the ruling to the U.S. Supreme Court, the Associated Press reported.

“The Department of Justice strongly disagrees with the decision of the divided court,” Sessions said in a statement reported by Talking Points Memo and Business Insider. “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.”

The appeals court affirmed the nationwide preliminary injunction, but said the district court had erred by issuing the injunction against the president himself.

Gregory said the revised order likely violated the establishment clause, an “untiring sentinel” for the principle that the government may not favor or disfavor one religion over another.

“Congress granted the president broad power to deny entry to aliens, but that power is not absolute,” he said. “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 revised order bans for 90 days new visas for travelers to the United States from six Muslim-majority countries—Iran, Libya, Somalia, Sudan, Syria and Yemen. The first visa ban had included Iraq, but it is no longer on the list because of its efforts against ISIS. The revised order also imposes a 120-day ban on refugees.

Gregory said the first and second executive orders were issued “against a backdrop of public statements” by Trump and his representatives criticizing Muslim immigration. They included a statement on Trump’s campaign website that said he is calling
for “a total and complete shutdown of Muslims entering the United States.”

The government had argued that campaign statements should not be taken into account. The appeals court disagreed.

“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. We decline to do so,” Gregory said.

Related article:

ABAJournal.com: “DOJ lawyer tells 4th Circuit that Trump’s travel order ‘is not a Muslim ban’

Updated at 4:55 p.m. to note Sessions’ announcement that the case will be appealed to the U.S. Supreme Court.


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