Only the Supreme Court Can Save Trump's Travel Ban Now

A federal appeals court said Thursday the president’s controversial executive order “drips with religious intolerance, animus, and discrimination.”

Immigration activists protest President Trump's travel ban outside of the U.S. Customs and Border Protection headquarters in March. ((Eric Thayer / Reuters))

Updated at 5:48 p.m.

The Fourth Circuit Court of Appeals largely upheld a lower court’s injunction that blocks the Trump administration from enforcing a key provision of the controversial travel ban on Thursday, handing the president a major legal defeat on his signature national-security policy.

Writing for the majority in International Refugee Assistance Project v. Trump, Chief Judge Roger Gregory said the president’s executive order violated the religious-freedom protections enshrined in the First Amendment’s Establishment Clause by unjustifiably targeting Muslims for discrimination.

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

The Justice Department said it would appeal Thursday’s ruling to the U.S. Supreme Court, a move it declined to make when federal courts blocked the previous order in February.

“President Trump’s executive order is well within his lawful authority to keep the Nation safe,” Attorney General Jeff Sessions said in a statement. “The Department of Justice strongly disagrees with the decision of the divided court, which blocks the President’s efforts to strengthen this country’s national security.”

Timing could prolong the legal battle for months to come. The Court’s annual summer recess is scheduled to begin at the end of June. If the justices agree to hear the case, oral arguments wouldn’t take place until after the start of the new term in October. That could delay a final ruling until the end of 2017 or even the first months of 2018.

Thursday’s 10-3 ruling deals a crucial blow to the Trump administration’s hopes of enforcing the executive order in full. Because the case was heard by a full sitting of the Fourth Circuit’s bench—10 out of the 13 participating judges sided with the majority—only the Supreme Court can review and possibly overturn the decision. And because the lower court’s preliminary injunction applied nationwide, it would block the travel ban’s enforcement even if other federal appeals courts ruled in its favor.

If the Court declines to review the case or upholds the Fourth Circuit’s decision, the administration would have three options. First, the White House could again rewrite the order in another attempt to gain judicial approval. Second, it could continue the legal fight in the lower courts and seek a ruling in their favor once the case is fully heard there. Finally, it could concede defeat and abandon the order altogether.

In more immediate terms, the decision prevents the federal government from carrying out a provision in Trump’s executive order that would temporarily suspend visa applications from six Muslim-majority countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for 120 days. The president issued the second version of the order in March after multiple federal courts ruled against its first iteration in February.

The Trump administration defended its move on national-security grounds during oral arguments earlier this month. The courts have traditionally given broad latitude to the executive branch and Congress when shaping immigration policy, acting solicitor general Jeffrey Wall argued at the time. He pointed to the Supreme Court’s Mandel standard, which established an extremely lenient threshold for the government to meet when judges evaluate its immigration powers.

But the Fourth Circuit’s majority was unpersuaded. The court pointed to a litany of statements by Trump and his close associates before and after the inauguration that pointed towards a more sinister motive for the travel ban. Among the referenced comments were Trump’s December 2015 demand for a “total and complete shutdown of Muslims entering the United States,” former New York City Mayor Rudy Giuliani’s claim in January that Trump asked him to draft a “Muslim ban” that would pass legal muster, and White House Press Secretary Sean Spicer’s insistence in March that “the principles [of the second executive order remain the same” as its widely criticized first version.

“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.”