A federal appeals court on Thursday left in place the freeze on President Trump’s revised entry ban, handing the administration another legal setback in its efforts to block the issuance of new visas to citizens of six Muslim majority countries.
The ruling from the U.S. Court of Appeals for the 4th Circuit means the Trump administration still cannot enforce its travel order that the government says is urgently needed for national security.
In its 10 to 3 decision, the Richmond-based court said the president’s broad immigration power to deny entry into the U.S. is not absolute and sided with challengers, finding that the travel ban “in context drips with religious intolerance, animus and discrimination.”
The president’s authority, the court said, “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,” according to the majority opinion written by Chief Judge Roger L. Gregory, and joined in part by nine other judges.
The 4th Circuit declined to lift an order from a Maryland federal judge, who ruled against the travel ban in March and sided with opponents who said the ban violates the Constitution by intentionally discriminating against Muslims. The ruling leaves the injunction in place and means citizens from Iran, Sudan, Somalia, Yemen, Syria and Libya can continue entering the United States.
Even if the appeals court had sided with the Trump administration, the president’s order would have remained on hold because of a separate opinion from a federal judge in Hawaii. To put the ban in motion, the Justice Department would also have had to win at the U.S. Court of Appeals for the 9th Circuit, which heard oral arguments on May 15 in the government’s appeal of the Hawaii decision.
Federal immigration law gives the president broad immigration powers and government lawyers urged the court to defer to the president and not second guess his judgment.
But the ruling from the 4th Circuit was the latest in a series of defeats for the administration. President Trump rewrote the entry ban after the 9th Circuit in February refused to lift an earlier injunction.
The revised version would temporarily suspend the U.S. refugee program and halt for 90 days the issuance of new visas to travelers from the six countries while the administration reviews its screening process.
The next step for the Trump administration would be to ask the Supreme Court to stay the 4th Circuit’s decision. Such a request usually requires showing that the government would suffer irreparable harm if the lower court decision was allowed to stand. The passage of time since the executive order was first issued might make that difficult.
A challenge to the 4th Circuit decision would go to Chief Justice John G. Roberts Jr., who receives emergency petitions from that court, and then be referred to the rest of the justices. It would take five votes to stay the decision.
The administration might also wait until it receives a ruling from a panel of the U.S. Court of Appeals for the 9th Circuit. Those judges are considering a ruling from a judge in Hawaii who put the travel ban on hold. The full 9th Circuit upheld a freeze on Trump’s previous executive order.
The challenge in Maryland was brought by organizations and individuals, including a Muslim in the United States whose relative would be affected by the ban.
In its 79-page opinion, the court said challengers had shown real harm that would come from delaying or disrupting pending visa applications, in addition to the “psychological harm that flows from confronting official action preferring or disfavoring a particular religion.”
During oral arguments this month, many of the 4th Circuit judges expressed doubts about the viability of the president’s order. They questioned whether there was a link between barring of citizens from the six countries identified by the administration and ensuring U.S. security.
In its opinion Thursday, the court said, “plaintiffs point to ample evidence that national security is not the true reason” for the order, pointing to the president’s “numerous campaign statements expressing animus towards the Islamic faith” and his proposal to ban Muslims from entering the U.S.
The majority opinion recounts in detail then-candidate Trump’s statement on his campaign website, and quotes from his tweets, television interviews and comments made by his advisers.
The establishment clause of the First Amendment specifically prohibits the government from denigrating a particular religion.
Karen Tumlin, legal director at the National Immigration Law Center, one of the lawyers on the cases said Thursday that the court had concluded that this executive order has to be blocked because it “steps over the constitutional line in a way that is out of step with our constitutional values of religious tolerance.”
All of the judges in the majority were placed on the court by Democratic presidents and the three dissenting judges — Paul V. Niemyer, Dennis W. Shedd and G. Steven Agee — were all nominated to the bench by Republican presidents.
Niemeyer called the decision unprecedented and unworkable. “The majority looks past the face of the order’s statements on national security and immigration, which it concedes are neutral in terms of religion, and considers campaign statements made by candidate Trump to conclude that the order denigrates Islam, in violation of the Establishment Clause,” he wrote. He said that approach plainly violates Supreme Court precedent, misapplies the Constitutional’s prohibition on establishing religion and “adopts a new rule of law that uses campaign statements to recast the plain, unambiguous, and religiously neutral text of an executive order.”
He said the majority decision would not withstand Supreme Court review.
“The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds — one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation,” wrote Niemeyer, whose opinion was joined by the other dissenting judges.