President Trump’s “travel ban”—the two successive executive orders barring entry of persons from selected Muslim-majority countries—is headed for The Show.
For those scoring at home, the first travel ban won one—in a district court in Massachusetts—and lost three, in district courts in Virginia and Seattle, and then in the Ninth Circuit before being withdrawn. The revised ban so far has gone 0-3. District courts in Maryland and Hawaii both enjoined it, and Thursday the Court of Appeals for the Fourth Circuit affirmed the Maryland court’s injunction.
Because the Fourth Circuit’s decision was “en banc”—meaning decided by a full-court panel of 13 judges rather than the normal three-judge panel—there’s nowhere to go but the Supreme Court, which is virtually certain to grant review. In its current form, it bans entry in the U.S. by nationals of six majority-Muslim countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for at least 90 days until the executive can determine whether those countries can provide enough information to U.S. authorities about individuals to satisfy a new system that Trump called “extreme vetting.”
The straightforward case against the travel ban goes like this: Candidate Trump to promised “a total and complete shutdown of Muslims entering the United States”; as president he said he was keeping that promise; his first order used explicitly religious language; the new one uses neutral language—but Trump has winked at the camera to indicate that it was still the same. By discriminating against Muslims, the orders violated the First Amendment’s ban on “an establishment of religion.” Fourth Circuit Chief Judge Robert Gregory’s majority opinion relies on that argument, as did earlier opinions by District Judges Leonie Brinkema, James Robart, Derrick Watson, and Theodore Chuang, and by a three-judge Ninth Circuit panel.