A large crowd rallies on the steps of the U.S. Supreme Court, led by top Democrat lawmakers, to denounce President Donald Trump’s executive order banning immigration from 7 Muslim-majority countries, on January 30, 2017.
The U.S. Court of Appeals for the Fourth Circuit is the first appellate court to uphold an injunction against President Donald Trump’s revised travel ban executive order, a move that likely sets the issue up for an appeal to the U.S. Supreme Court.
Thursday’s opinion keeps in place a Maryland district court’s nationwide injunction against the order, issued March 6. The executive order blocked the entry of immigrants from six majority-Muslim countries.
“Congress granted the president broad power to deny entry to aliens, but that power is not absolute,” Judge Roger Gregory wrote. “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.”
The Fourth Circuit heard the case en banc earlier this month, meaning the government’s only recourse is to appeal to the Supreme Court. Trump has indicated he would appeal, though a similar challenge is pending in the Ninth Circuit. That court heard arguments a week after the Fourth Circuit, and a ruling is pending.
Today’s 10-3 ruling was fractured. Judges Diana Motz, Robert King, James Wynn, Albert Diaz, Henry Floyd and Pamela Harris joined in Gregory’s opinion. Judges William Traxler, Barbara Keenan, Stephanie Thacker and Wynn wrote concurring opinions. Three of the more conservative judges, Paul Niemeyer, Dennis Shedd and G. Steven Agee, each wrote dissenting opinions but joined in each others’ dissents.
Central to the case was whether the court should consider Trump’s public comments calling for a complete ban on Muslims entering the country as evidence that his order discriminated based on religion. The government argued the order itself was neutral on its face, and that the court should not consider what Trump said as a presidential candidate.
“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,” the opinion said. “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.”
In his dissent, Niemeyer, a President George H.W. Bush appointee, wrote that the lower court “seriously erred” in considering Trump’s campaign statements, and in refusing to apply the correct Supreme Court precedent.
“The district court’s approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis,” Niemeyer wrote.
The majority opinion did not reach the statutory questions presented under the Immigration and Nationality Act, and instead focused on the establishment clause claims since those were the basis of the lower court’s injunction.
The case was brought by several refugee assistant groups, who were represented by a team of lawyers from the American Civil Liberties Union and the National Immigration Law Center.
