4th Circuit Rules Upholds Nationwide Injunction of Trump Travel's Ban

In a 205 page opinion, available here, the 4th Circuit Court of Appeals, rejected most of Trump's travel ban. A Washington Post article is here.

In a 10-to-3 decision, the Richmond-based court said the president’s power to deny entry into the United States is not absolute and sided with challengers, finding that the travel ban “in context drips with religious intolerance, animus and discrimination.”

...All of the judges in the majority were nominated to the court by Democratic presidents, and the three dissenting judges — Paul V. Niemeyer, Dennis W. Shedd and G. Steven Agee — were nominated to the bench by Republican presidents.


I summarize the ruling below, removing some case citations to make it easier to read, and substituting [P] for President when the reference is to Trump. (I do not acknowledge him as P., only as occupying a desk in the oval office.)

The Executive Order being challenged is Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“EO-1” or “First Executive Order”), 82 Fed. Reg. 8977 (Jan. 27, 2017).

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan... (1866), remains “a law for rulers and people, equally in war and in peace.” 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.

....Congress granted the President broad power to deny entry to aliens, but that power is not absolute. 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. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2© of the challenged Executive Order.

The Court provides the history of the challenges to this Order: a stay was granted in the Western District of Washington, Trump appealed and lost, and the 9th Circuit refused to rewrite the order for him to make it acceptable. So Trump, hoping to avoid further litigation, revoked the first order and issued a second order in its place, "EO-2” or “Second Executive Order”) on March 6, 2017. Exec. Order No. 13780, “Protecting the Nation from Foreign Terrorist Entry Into the United States,” 82 Fed. Reg. 13209 (Mar. 6, 2017).

The portion of EO-2 that led to the 4th Circuit lawsuit is Section 2©, titled “Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period”.

This section reinstated the ninety-day suspension of entry for nationals from six countries, eliminating Iraq from the list, but retaining Iran, Libya, Somalia, Sudan, Syria, and Yemen (the “Designated Countries”).... The President, again invoking 8 U.S.C. § 1182(f) and also citing 8 U.S.C. § 1185(a), declared that the “unrestricted entry” of nationals from these countries “would be detrimental to the interests of the United States.”

The actual text of (2)© is:

To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and of vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

Trump's second order stated nationals from the designated countries warranted additional scrutiny because “the conditions in these countries present heightened threats."

The Court exposes the factual misrepresentations in the second order:

Shortly before the President signed EO-2, an unclassified, internal report from the Department of Homeland Security (“DHS”) Office of Intelligence and Analysis dated March 2017 was released to the public. See J.A. 425–31. The report found that most foreign-born, U.S.-based violent extremists became radicalized many years after entering the United States, and concluded that increased screening and vetting was therefore unlikely to significantly reduce terrorism-related activity in the United States. J.A. 426.

...a separate DHS report indicated that citizenship in any country is likely an unreliable indicator of whether a particular individual poses a terrorist threat. J.A. 424. In a declaration considered by the district court, ten former national security, foreign policy, and intelligence officials who previously served in the White House, State Department, DHS, and Central Intelligence Agency—four of whom were aware of intelligence related to terrorist threats as of January 20, 2017—advised that “[t]here is no national security purpose for a total ban on entry for aliens from the [Designated Countries].” J.A. 91.

In a footnote the court provides these statistics:

According to the Pew Research Center, Iraq’s population is 99% Muslim, Iran’s is 99.5%, Libya’s is 96.6%, Sudan’s is 90.7%, Somalia’s is 99.8%, Syria’s is 92.8%, and Yemen’s is 99.1%. See Pew Res. Ctr., The Global Religious Landscape 45–50 (2012).

The Court proceeds to list the statements of "Candidate Trump" relevant to immigration and refugee matters. It notes:

On December 7, 2015, then-candidate Trump published a “Statement on Preventing Muslim Immigration” on his campaign website, which proposed “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

The full statement is in the opinion, and the Court notes Trump didn't remove it from his website until just before oral argument in this case.

The Court quotes Trump's anti-Muslim statements made during TV appearances during the campaign and after the election but before the inauguration -- they are pretty disgusting, I won't repeat them.

The Court moves to post-January and to Rudy Giuliani.

The following day, former New York City Mayor and presidential advisor Rudolph Giuliani appeared on Fox News and was asked, “How did [Trump] decide the seven countries?” Giuliani answered, “I’ll tell you the whole history of it. So when [Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” Giuliani said he assembled a group of “expert lawyers” that “focused on, instead of religion, danger—the areas of the world that create danger for us. . . . It’s based on places where there [is] substantial evidence that people are sending terrorists into our country.”

And on to the Attorney General:

Attorney General Jefferson Sessions and Secretary of Homeland Security John Kelly submitted a letter to [Trump] } detailing how weaknesses in our immigration system compromise our nation’s security and recommending a temporary pause on entry of nationals from the Designated Countries.

The Court is ready to discuss the issue now. It first rejects Trump's lawyers' view that the plaintiffs lack standing or the issue isn't ripe.

The Court then finds Team Trump acted in bad faith and the order was a pretext.

Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose.

...Because Plaintiffs have made a substantial and affirmative showing that the government’s national security purpose was proffered in bad faith, we find it appropriate to apply our longstanding Establishment Clause doctrine.

The Court says Trump must show the challenged action’s primary purpose is secular, and he doesn't.

The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States.

The court then quotes more statements from Trump, as well as policy adviser Stephen Miller, and Sean Spicer, and sees right through them.

These statements suggest that like EO-1, EO-2’s purpose is to effectuate the promised Muslim ban, and that its changes from EO-1 reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States.

These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: [P] Trump’s desire to exclude Muslims from the United States. The statements also reveal [P] Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly for exclusion from the United States.

The next section addresses and rejects Trump's lawyers assertion that his campaign statements should not be considered:

[T]here is a direct link between the [Trump's] numerous campaign statements promising a Muslim ban that targets territories, the discrete action he took only one week into office executing that exact plan, and EO-2, the “watered down” version of that plan that “get[s] just about everything,” and “in some ways, more.”

Another jab at Trump's lawyers:

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, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.

The Court holds:

[W]e find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs. We therefore find that EO-2 likely fails Lemon’s purpose prong in violation of the Establishment Clause.22 Accordingly, we hold that the district court did not err in concluding that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.

The Court moves on to irreparable harm:

Because we uphold the district court’s conclusion that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim, we next consider whether Plaintiffs have demonstrated that they are likely to suffer irreparable harm in the absence of a preliminary injunction.

...our finding that Plaintiffs are likely to succeed on the merits of their constitutional claim counsels in favor of finding that in the absence of an injunction, they will suffer irreparable harm.

...We therefore find that Plaintiffs are likely to suffer irreparable harm if Section 2© of EO-2 takes effect.

The Court then weighs the equities.

At the outset, we reject the notion that the President, because he or she represents the entire nation, suffers irreparable harm whenever an executive action is enjoined. This Court has held that the Government is “in no way harmed by issuance of a preliminary injunction which prevents [it] from enforcing restrictions likely to be found unconstitutional.”

...We are likewise unmoved by the Government’s rote invocation of harm to “national security interests” as the silver bullet that defeats all other asserted injuries.

The Court again exposes the reason for the second order: religious animus

[T]he Government’s asserted national security interest in enforcing Section 2© appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country. We remain unconvinced that Section 2© has more to do with national security than it does with effectuating the [P]’s promised Muslim ban.

The balance tips for Plaintiffs and against Trump:

on balance, we cannot say that the Government’s asserted national security interest outweighs the competing harm to Plaintiffs of the likely Establishment Clause violation. For similar reasons, we find that the public interest counsels in favor of upholding the preliminary injunction.

And in a direct blast to Donald Trump:

When the government chooses sides on religious issues, the “inevitable result” is “hatred, disrespect and even contempt” towards those who fall on the wrong side of the line. Improper government involvement with religion “tends to destroy government and to degrade religion,”, encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group. “


We therefore conclude that enjoining Section 2© promotes the public interest of the highest order. And because Plaintiffs have satisfied all the requirements for securing a preliminary injunction, we find that the district court did not abuse its discretion in enjoining Section 2© of EO-2.

As to the scope of the injunction: the Court says the nationwide injunction is appropriate. But the application doesn't apply to Trump personally.

In light of the Supreme Court’s clear warning that such relief should be ordered only in the rarest of circumstances we find that the district court erred in issuing an injunction Appeal against the [P] himself. We therefore lift the injunction as to the [P] only. The court’s preliminary injunction shall otherwise remain fully intact.

....To be clear, our conclusion does not “in any way suggest[] that Presidential action is unreviewable. Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the [P]’s directive.”

...Even though the President is not “directly bound” by the injunction, we “assume it is substantially likely that the President . . . would abide by an authoritative interpretation” of Section 2© of the Second Executive Order.

So the preliminary injunction is affirmed, except as to Trump personally. Trump's lawyers request for stay is denied.

Jefferson Sessions has promised to appeal to the Supreme Court. For the stay to be reversed, five votes would be needed.

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    The Administration has 90 days (none / 0) (#1)
    by Peter G on Fri May 26, 2017 at 04:56:10 PM EST
    to petition the Supreme Court for review. I will be interested to see if they claim that there is really a "national security" need for the EO-2 (Travel Ban 2.0); if so, they are likely to move first to vacate the stay pending the filing of their petition, which is a less complex document and likely to be done sooner.  As J said, it takes 5 Justices' votes to vacate the stay, although it only takes 4 votes to grant full review of the case.

    Sorry for ambiguity (none / 0) (#2)
    by Peter G on Fri May 26, 2017 at 08:27:26 PM EST
    What I was trying to say is that a motion to vacate the stay might be an easier document to put together and get filed sooner, if the Solicitor General's office is so inclined.