The Slatest

Another Appeals Court Rules Against Travel Ban 3.0

Protesters stand in front of the United States Court of Appeals for the Ninth Circuit in San Francisco, California on February 7, 2017. 
A federal appeals court heard arguments on Tuesday on whether to lift a nationwide suspension of President Donald Trump's travel ban targeting citizens of seven Muslim-majority countries. / AFP / Josh Edelson        (Photo credit should read JOSH EDELSON/AFP/Getty Images)
Protesters stand in front of the United States Court of Appeals for the Ninth Circuit in San Francisco, California on February 7, 2017. JOSH EDELSON/Getty Images

The 4th Circuit U.S. Court of Appeals, based in Richmond, Virginia, has become the second federal appellate court to rule that President Donald Trump’s third try at a travel ban directed at eight countries, of which six are Muslim-majority, is likely unconstitutional. Despite the fact that this third iteration of the ban, enacted in September after two previous efforts were set aside, is currently pending before the Supreme Court, which has allowed it to go into effect temporarily, the 4th Circuit on Thursday joined the 9th Circuit in finding that the ban is likely unconstitutional, because it is rooted in animus toward Muslims and thus violates the Constitution’s Establishment Clause.

In a 9–4 decision on behalf of the entire appellate court, Chief Judge Roger Gregory wrote that the government’s “proffered rationale for the Proclamation lies at odds with the statements of the President himself” and determined that “examining official statements from President Trump and other executive branch officials, along with the proclamation itself, we conclude that the proclamation is unconstitutionally tainted with animus toward Islam.”

In so doing, the en banc court upheld an injunction put in place by a lower court in Maryland that had blocked the newest version of travel ban. That injunction now awaits a final ruling at the Supreme Court.

Unlike the narrower 9th Circuit decision from December, which set aside the travel ban based on a reading of federal immigration laws, the 4th Circuit went much further, addressing constitutional infirmities that it found in Trump’s first version of the executive order, signed in January 2017. Painstakingly citing every single anti-Muslim statement and tweet made by Trump from the day he signed the first travel ban into effect, Gregory noted that On a fundamental level, Trump’s Muslim travel ban “second-guesses our nation’s dedication to religious freedom and tolerance.” Citing tweets and statements proffered by the president about the central purpose of the ban, the court determined that “the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States.” Further, notes the majority, it’s just not proven that the government has a “bone fide” purpose in pursuing the ban, and that the nondiscriminatory reasons proffered in the newer ban, still don’t amount to a reasoned basis for this kind of action.

The judges in the majority also found that the plaintiffs—the families affected by the new version of the order—were likely to succeed on the statutory claims as well. Several concurring opinions offered up various other rationales for setting the travel ban aside, presumably in an effort to give the Supreme Court a narrower basis from which to rule if the constitutional arguments are not persuasive. The principal dissent, authored by Judge Paul Niemeyer accused the majority of failing to defer to the executive branch, and failing to recognize how the ban has changed since its first incarnation. Niemeyer charged that “the opinions of the district court and those supporting the majority’s judgment are demonstrably wrong in virtually every material respect.”

The Supreme Court, which signaled the possibility that it will side with the government and uphold the ban when it allowed it to go into effect in December, has already asked for briefing on both the statutory and constitutional questions raised by the travel ban. The high court will presumably have the last word on all this. Arguments on the 9th Circuit’s decision are already scheduled for April, and the fate of the 4th Circuit’s ruling—all 285 pages—will wait until then.

Becca Heller, director of International Refugee Assistance Project, who brought this suit, reached via email gave this statement: “With all of the news swirling around these days, real, fake, absurd, or otherwise, it’s easy to forget that one of President Trump’s most harmful and insidious policies is still on the books. As Americans, we must continue to remember the hundreds of millions of people now banned from our country solely based on their religion or nationality. We must keep fighting for them. Even when they are not making headlines.”