Fourth Circuit upholds block of President Trump’s travel ban

In the case International Refugee Assistance Project v. Trump, the Fourth Circuit has issued its much anticipated, 79 page decision upholding the lower court’s conclusion that putting a stop to President Trump’s so-called travel ban, in form of his revised, March 6, 2017 Executive Order, was “necessary to provide complete relief.” The Circuit Court also agreed that the injunction should be applied nationwide, for four reasons:

1. Plaintiffs are dispersed throughout the United States;
2. Nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that “the immigration laws of the United States should be enforced vigorously and uniformly;
3. Enjoining the section of the Executive Order in question with respect to only the Plaintiffs in the case does not cure the Order’s violations of the Establishment Clause; and
4. The continued enforcement of the Executive Order against similarly situated individuals would only serve to reinforce the “message” that Plaintiffs “are outsiders, not full members of the political community.”

Standing

In a recent blog, we explained the key issues before the court: standing, and the use of evidence other than the language contained in the four corners of the Executive Order. Regarding the former, whether the Plaintiffs have concrete injuries that the Court is capable of redressing was another question whose outcome was difficult to predict. The Court concluded that the Plaintiffs had suffered an injury, which was “fairly traceable to the defendants’ actions.” Furthermore, the Court opined that a decision favorable to the Plaintiffs would likely resolve the injury. The Court analyzed these elements with respect to just one plaintiff, and in reaching its conclusion that it had standing, determined that further examination of the question, for the remaining Plaintiffs, was unnecessary.

The President’s utterances

In our blog, we pointed out that any determination with respect to the permissibility of the President’s pre and post campaign statements, as evidence of an unconstitutional motivation, was going to be critical. And indeed it was.

The Court set forth a number of those statements that, in its view, revealed President Trump’s religiously discriminatory mindset. These include, but are not limited to, the following:

• December 7, 2015: Candidate Trump’s “Statement on Preventing Muslim Immigration,” published 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.”
• March 9, 2016: Candidate Trump’s confession on CNN that “I think Islam hates us, and “[W]e can’t allow people coming into the country who have this hatred.”
• January 27, 2017: President Trump’s explanation for his preference of Christian refugees because “[t]hey’ve been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible . . . .”

The Court justified its use of the utterances because the Plaintiffs had “made a substantial and affirmative showing that the government’s national security purpose was proffered in bad faith.” This, in turn, triggered a look behind the Executive Order to examine whether it was “motivated by a primarily religious purpose, rather than its stated reason of promoting national security.” The Court decided that all the “statements, taken together, provide direct, specific evidence of what motivated [both Executive Orders]…President Trump’s desire to exclude Muslims from the United States.”

Further, reasoned the Court, “[i]f we limited our purpose inquiry to review of the operation of a facially neutral order, we would be caught in an analytical loop, where the order would always survive scrutiny. It is for this precise reason that when we attempt to discern purpose, we look to more than just the challenged action itself…We do not discount that there may be a national security concern motivating [the Executive Order]; we merely find it likely that any such purpose is secondary to [the Executive Order’s] religious purpose.”

The Court was careful to limit the use of this kind of evidence to this case alone: “If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review.” Nevertheless, this is very likely to be a key issue, if not the crux of the entire case, if and when the United States Supreme Court takes up the appeal that the government has promised.

In the end, the Court recognized that although the President has nearly absolute and unqualified power over immigration, “that power is still subject to important constitutional limitations.”

What’s next?

In the case State of Hawaii, et al. v. Trump, the Ninth Circuit heard oral arguments challenging additional provisions in the same Executive Order a week after the Fourth heard theirs. That session featured comparable legal questions, and the Ninth, known as an extremely liberal court, seems likely to reach the same conclusion as the Fourth did. There would be less of a reason for the Supreme Court to accept review, but assuming it did, the agreement between circuits might suggest an outcome unfavorable to the government. This stands even if, with the addition of Justice Gorsuch, the Supreme Court now leans to the right. As it happens, the three conservative judges on the Fourth Circuit panel dissented from the ten-judge majority, comprised entirely of democrats.

On the other hand, in the unlikely event that the Ninth Circuit allows the Executive Order’s mandates to proceed, the split between the two circuits will create a more urgent situation, virtually guaranteeing that the Supreme Court take up the case, perhaps sooner than later.