“These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States,” Gregory wrote. “The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly. And after courts enjoined EO-1, the statements show how President Trump attempted to preserve its core mission: by issuing EO-2—a ‘watered down’ version with ‘the same basic policy outcomes.’”
Three of the court’s judges dissented from the ruling, arguing the president’s national-security determinations should not be lightly tossed aside by federal courts. “Undoubtedly, protection of constitutional rights is important,” Judge Dennis Shedd wrote in dissent, “but there are often times in the federal system when constitutional rights must yield for the public interest.”
Judge Paul Niemeyer focused on what he saw as the majority’s misapplication of legal precedents on both immigration restrictions and religious discrimination. “This intense factual scrutiny of a facially legitimate purpose, of course, flies in the face of Mandel, Fiallo, and Din,” he wrote, citing a series of Supreme Court cases that broadly deferred to presidential authority over foreign entry into the U.S. “But even within traditional Establishment Clause doctrine, it is an unprecedented overreach.”
Multiple judges in the majority, for their part, repeatedly cited Korematsu v. United States, the Supreme Court case that upheld Japanese-American internment, and other dark chapters of American legal history as warnings. For them, Trump’s executive order fell into the same category as previous acts of legalized racism once validated by the judiciary. “Invidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination,” Judge James Wynn wrote in a concurring opinion.
Shedd saw a different peril. “Today’s decision may be celebrated by some as a victory for individual civil rights and justice, and by others as a political defeat for this President,” he wrote. “Yet, it is shortsighted to ignore the larger ramifications of this decision. Regrettably, at the end of the day, the real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm.”
The ACLU, which was one of the legal groups representing the plaintiffs, proved Shedd’s first assertion correct. “President Trump’s Muslim ban violates the Constitution, as this decision strongly reaffirms,” Omar Jadwat, the director of the organization’s Immigrants’ Rights Project, said in a statement. “The Constitution’s prohibition on actions disfavoring or condemning any religion is a fundamental protection for all of us, and we can all be glad that the court today rejected the government’s request to set that principle aside.”