The U.S. Court of Appeals for the Fourth Circuit has upheld a lower federal court’s decision blocking the Trump administration from enforcing its revised travel ban from several terror-prone nations in the Middle East.
The appeals court, based in Richmond, Virginia, held that the order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” Chief Justice Roger Gregory wrote the opinion for the court.
As the Washington Examiner reported, the court also wrote in the opinion:
“Congress granted the president broad power to deny entry to aliens, but that power is not absolute,” the court based in Richmond, Va., wrote in its opinion. “It cannot go unchecked when, as here, the president wields it through executive edict that stands to cause irreparable harm to individuals across this nation. Therefore … we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged executive order.”
The decision was handed down by a 10-3 vote. The Court stated that the order likely violates the First Amendment’s Establishment Clause (that the government may not show preference or hostility to a particular religious belief system and its adherents). The ACLU argued that Trump’s allegedly anti-Muslim comments on the campaign trail showed that he had intent to discriminate against Muslims with the order.
Apparently, the appeals court has agreed with that assessment.
The Fourth Circuit did slightly modify the lower court’s ruling though. The lower federal appeals court issued the injunction against the President himself. The injunction against the order is still intact nationwide, but not against Trump himself.
The three judges who dissented slammed the majority’s decision.
“The shortcomings inherent in the district court’s fact-finding are obvious,” the three judges wrote. “It is primarily based on the district court’s selectively negative interpretation of political campaign statements made before the president swore his oath of office, its acceptance of the national security assessment of former government officials (many of whom openly oppose this president), its failure to account for the national security assessment of the current attorney general and secretary of Homeland Security, its misplaced conclusion regarding the president’s decision not to submit the executive order to the executive bureaucracy for ‘inter-agency review,’ and the purported novelty of the temporary travel pause.
“Moreover, despite its express recognition of the dangers posed by the designated countries and the national security interests served by the temporary travel pause, the district court — with no access to intelligence information — criticized the president for failing to identify any instances of individuals who came from the designated countries having engaged in terrorist activity in the United States, faulted the president for not explaining why the temporary travel pause is the necessary response to the existing risks, and ultimately found that the president failed to prove that national security cannot be maintained without the temporary travel pause. As if all of this is not enough, the president’s supposed goal of ‘banning Muslims’ from the United States is not remotely served by the temporary travel pause, a fact that makes the district court’s factual finding even more dubious.”
Axios notes that the next step that the administration will have to take is to appeal to the Supreme Court. This is another loss in a series of consecutive losses in court over the executive orders, both the original and the revised.