A federal appeals court on Thursday struck another blow against the Trump administration's efforts to temporarily halt immigration from six majority-Muslim countries, upholding a nationwide injunction that blocks the travel ban in President Trump's second executive order on the issue.
A majority of a full sitting of the US Court of Appeals for the Fourth Circuit held that although President Trump had broad power to deny entry into the United States, his executive order "stands to cause irreparable harm to individuals across the nation."
"The question for this Court, distilled to its essential form, is whether the Constitution ... remains 'a law for rulers and people, equally in war and in peace,'" Fourth Circuit Chief Judge Roger Gregory wrote in the majority opinion. "And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination."
Attorney General Jeff Sessions said in a statement that the Justice Department will seek review of the Fourth Circuit's decision by the US 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. "As the dissenting judges explained, the executive order is a constitutional exercise of the President’s duty to protect our communities from terrorism. 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.”
The ruling is the first appellate court ruling on the second executive order, which was signed March 6. The US Court of Appeals for the Ninth Circuit also heard arguments earlier this month over a more broad injunction against the executive order out of Hawaii, but has yet to release its decision. A Ninth Circuit ruling in February that allowed an injunction against Trump's first attempt at a travel ban to stand paved the way for the second version.
The second executive order would halt immigration from six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen – for 90 days while the administration reviewed immigration policies. The Fourth Circuit held that the challengers were likely to succeed on their claims that the travel ban was in reality intended to be a Muslim ban and violated the Constitution's Establishment Clause, which prohibits the government from favoring or disfavoring a particular religion.
Gregory wrote that, despite the administration's arguments that the executive order on its face had nothing to do with religion, the plaintiffs presented enough evidence that the national security justification was a "pretext for its religious purpose."
The judges rejected the Justice Department's arguments that the court shouldn't give weight to Trump's campaign statements in favor of a Muslim ban, quoting them at length. The court also cited post-inauguration statements by Trump and his advisors about the administration's two attempts at a travel ban — the second version was signed after the first one was repeatedly struck down by courts as likely unconstitutional — including Trump's remarks that the second version was a "watered down version of the first order."
"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," Gregory wrote. "We need not probe anyone’s heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms."
Omar Jadwat, director of the American Civil Liberties Union's Immigrants’ Rights Project, argued the case for the challengers.
“President Trump’s Muslim ban violates the Constitution, as this decision strongly reaffirms. The Constitution’s prohibition on actions disfavoring or condemning any religion is a fundamental protection for all of us, and we can all be glad that the court today rejected the government’s request to set that principle aside," Jadwat said in a statement.
The Fourth Circuit, which heard arguments on May 8, upheld in large part the injunction entered by a Maryland federal district court blocking the travel ban. US District Judge Theodore Chuang in April enjoined all of the federal officials and agencies sued, including President Trump individually, from enforcing the travel ban. The Fourth Circuit found that Chuang erred in including the president in his order, but otherwise upheld the entirety of the injunction.
Ten of the thirteen judges that heard arguments in the case voted to uphold the injunction: Gregory and judges Diana Gribbon Motz, William Traxler Jr., Robert King, Barbara Milano Keenan, James Wynn Jr., Albert Diaz, Henry Floyd, Stephanie Thacker, and Pamela Harris. Wynn wrote a separate, concurring opinion that called the travel ban "invidious discrimination."
"Invidious discrimination that is shrouded in layers of legality is no less an insult to
our Constitution than naked invidious discrimination," Wynn wrote, drawing comparisons to two now widely-disavowed US Supreme Court decisions that upheld political actions that were used to justify slavery and Japanese internment during World War II: Dred Scott and Korematsu.
Traxler didn't join the entirety of Gregory's majority opinion, instead writing a one-paragraph concurring opinion that only said that he joined in the decision to uphold the nationwide injunction. This could mean that he disagreed with Gregory's analysis, or only agreed in part.
The other three judges — Judges Paul Niemeyer, Dennis Shedd, and G. Steven Agee — dissented, each writing their own opinions about their disagreements with the majority.
Niemeyer wrote that the majority was wrong to look beyond the facially neutral text of the executive order.
"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," he wrote.
Niemeyer also warned that it was dangerous for courts to consider campaign statements in a case like this. Anticipating that the legal fight over the travel ban would eventually make its way to the Supreme Court, he added that the justices "surely will shudder at the majority's adoption of this new rule that has no limits or bounds."
"Because of their nature, campaign statements are unbounded resources by which
to find intent of various kinds. They are often short-hand 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 reign to select whichever expression of a
candidate’s developing ideas best supports its desired conclusion," he wrote.
Shedd wrote in his dissenting opinion that the administration had presented legitimate national security concerns in adopting the executive order.
"Regrettably, at the end of the day, the real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm," he wrote.
Two judges recused from the case, J. Harvie Wilkinson III and Allyson Duncan. Wilkinson recused because his son-in-law is Acting Solicitor General Jeffrey Wall, who argued the case for the government. The reasons for Duncan's recusal are unknown.
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