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WASHINGTON (AP) — President Donald Trump’s revised executive order on immigration “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination,” a federal appeals court said Thursday in ruling against the travel ban targeting six Muslim-majority countries.
In a 10-3 vote, the 4th U.S. Circuit Court of Appeals upheld a lower court ruling that blocks the Trump administration from temporarily halting the issuance of new visas to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen.
The Richmond, Virginia-based 4th Circuit is the first appeals court to rule on the revised order issued in March. A second appeals court, the 9th Circuit based in San Francisco, is also weighing Hawaii’s challenge against the travel ban after U.S. District Court Judge Derrick Watson in Honolulu issued a nationwide injunction.
Attorney General Jeff Sessions vowed to appeal Thursday’s ruling to the U.S. Supreme Court, saying that the travel ban is “well within (Trump’s) lawful authority to keep the nation safe.”
“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. The department “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.”
The Supreme Court almost certainly would step into the case, if asked. The justices almost always have the final say when a lower court strikes down a federal law or presidential action.
Trump could try to persuade the Supreme Court to allow the revised order to take effect, even while the justices weigh whether to hear the case, by arguing that the injunctions against the travel ban make the country less safe. If the administration does ask the court to step in, the justices’ first vote could signal the court’s ultimate decision.
A central question in the case before the 4th Circuit was whether the courts should consider Trump’s past statements about wanting to bar Muslims from entering the country as evidence that the policy was primarily motivated by the religion.
The Trump administration argued that the courts should not look beyond the text of the revised order, which doesn’t mention religion. It said that the countries were not chosen because they are predominantly Muslim but because they present terrorism risks.
But Chief Judge Roger Gregory wrote that the Trump administration’s “asserted national security interest … appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.”
The three dissenting judges, all appointed by Republican presidents, said the majority was wrong to look beyond the text of the travel ban. Calling the revised order a “modest action,” Judge Paul Niemeyer wrote that a Supreme Court precedent required the court to consider it “on its face.” Looked at that way, the travel ban “is entirely without constitutional fault,” he wrote.
Ilya Somin, a law professor at George Mason University, said the partisan split was troubling.
If the Supreme Court follows the same kind of partisan divide, the Trump administration may fare better since five of the nine are Republican nominees. Still, Somin said, it’s difficult to make a confident prediction because “Supreme Court justices don’t always vote in ideological lockstep.”
Andrea Freeman, a law professor at the University of Hawaii, said the stakes are so high that even conservative justices will likely examine the revised order critically.
“This is more than a decision about the travel ban; this is a constitutional crisis where we’re seeing a test and a struggle between executive branch and the judiciary,” Freeman said. “I think the judiciary is going to want to assert its power.”
The original travel ban, issued Jan. 27, was aimed at seven countries and triggered chaos and protests across the country as travelers were stopped from boarding international flights and detained at airports for hours. Trump issued the revised order after the 9th U.S. Circuit Court of Appeals refused to reinstate the travel ban.
The revised order made it clear the 90-day ban covering six countries doesn’t apply to those who already have valid visas. And it got rid of language that would have given priority to religious minorities and removed Iraq from the list of banned countries.
Critics said the changes don’t erase the legal problems with the travel ban.
The Maryland case was brought by the American Civil Liberties Union and the National Immigration Law Center on behalf of organizations as well as people who live in the U.S. and fear the revised order will prevent them from being reunited with family members from the banned countries.
“President Trump’s Muslim ban violates the Constitution, as this decision strongly reaffirms,” said Omar Jadwat, an ACLU attorney who argued the case in the 4th Circuit. “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.”
Meanwhile, in Honolulu, Hawaii Attorney General Doug Chin hailed Thursday’s ruling, noting that the 4th Circuit validated the state’s central argument in Hawaii v. Trump.
“Terrorism must be stopped but not by sacrificing our constitutional principles or denigrating entire classes of people,” Chin said in a statement. “Not even the President of the United States is above the U.S. Constitution.”
Hawaii’s lawsuit — brought on behalf of the state and Ismail Elshikh, the imam of the Muslim Association of Hawaii — is now pending in the 9th U.S. Circuit Court of Appeals, which heard oral arguments May 15 but has not indicated when it will rule on the case.
Civil Beat reporter Rui Kaneya contributed to this report.