Trump’s Latest Travel Ban Suffers Blow From a Second Appeals Court
Posted February 15, 2018 1:54 p.m. EST
WASHINGTON — A second federal appeals court ruled Thursday against President Donald Trump’s latest effort to limit travel from countries said to pose a threat to the nation’s security.
The decision, from the 4th U.S. Circuit Court of Appeals, in Richmond, Virginia, will have no immediate practical impact. The Supreme Court agreed last month to hear an appeal from a broadly similar decision from the 9th Circuit, in San Francisco.
In December, in a sign that the Supreme Court may be receptive to upholding Trump’s latest order, the court allowed it to go into effect as the two cases moved forward.
The cases concern Trump’s third and most considered effort to make good on a campaign promise to secure the nation’s borders. But challengers to the latest ban, issued as a presidential proclamation in September, said it was tainted by religious animus and not adequately justified by national security concerns.
The ban restricts travel from eight nations, six of them predominantly Muslim: Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela. The restrictions vary in their details but, for the most part, citizens of the countries are forbidden from emigrating to the United States and many of them are barred from working, studying or vacationing here.
The 4th Circuit, by a 9-4 vote, ruled that the latest ban, like an earlier one, most likely violated the Constitution’s Establishment Clause, which forbids religious discrimination by the government. The majority based its conclusion in large measure on statements Trump has made as a candidate and while in office.
The 9th Circuit, by contrast, ruled on statutory grounds, saying Trump had exceeded the authority Congress had given him over immigration and had violated a part of the immigration laws barring discrimination in the issuance of visas.
The Supreme Court will consider both the constitutional and statutory arguments in the appeal from the 9th Circuit’s decision, which is likely to be heard in April.
Writing for the majority in Monday’s decision, Chief Judge Roger L. Gregory said that judicial second-guessing of the president was a delicate matter but was required in this case.
“Our constitutional system creates a strong presumption of legitimacy for presidential action, and we often defer to the political branches on issues related to immigration and national security,” Gregory wrote. “But the disposition in this case is compelled by the highly unusual facts here.”
“Plaintiffs offer undisputed evidence 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,” he wrote.
In dissent, Judge Paul V. Niemeyer said the majority had made a serious mistake in considering Trump’s political comments to interpret his executive order.
“The public debate over the administration’s foreign policy and, in particular, its immigration policy, is indeed intense and thereby seductively tempts courts to effect a politically preferred result when confronted with such issues,” Niemeyer wrote. But he added that maintaining public respect for federal courts “calls for heightened discipline and sharpened focus on only the applicable legal principles to avoid substituting judicial judgment for that of elected representatives.”
When the 4th Circuit blocked an earlier version of Trump’s travel ban in May, the vote was 10-3 and divided along ideological lines, with the three Republican appointees in dissent. This time, one Democratic appointee, Judge William B. Traxler Jr., switched sides, noting that more care and deliberation had gone into the latest order.