In a 10-3 decision, the 4th Circuit Court of Appeals has affirmed a federal district court’s preliminary injunction against implementation of President Donald Trump’s second attempt to ban Muslim immigrants, refugees, and visitors from the U.S. (Executive Order 13780).  In an opinion by Chief Judge Roger Gregory (appointed to the Court by President George W. Bush), the Court writes:

“The question for this Court, distilled to its essential form, is whether the Constitution… remains ‘a law for rulers and people, equally in war and in peace.’ 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. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. 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. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.”

The Court asserts its important role as the third branch of government:

“Although the Supreme Court has certainly encouraged deference in our review of immigration matters that implicate national security interests,…it has not countenanced judicial abdication, especially where constitutional rights, values, and principles are at stake. To the contrary, the Supreme Court has affirmed time and again that ‘it is emphatically the province and duty of the judicial department to say what the law is.’…This ‘duty will sometimes involve the ‘resolution of litigation challenging the constitutional authority of one of the three branches,’ but courts cannot avoid their responsibility.’

…the Supreme Court has made clear that despite the political branches’ plenary power over immigration, that power is still ‘subject to important constitutional limitations,’ … and that it is the judiciary’s responsibility to uphold those limitations….the political branches’ power over immigration is not tantamount to a constitutional blank check, and that vigorous judicial review is required when an immigration action’s constitutionality is in question.”

The Court finds that there is sufficient evidence that the President’s justification for the Executive Order based on national security was proffered in “bad faith”, namely:

“Plaintiffs here claim that EO-2 invokes national security in bad faith, as a pretext for what really is an anti-Muslim religious purpose. Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1….Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.”

Accordingly, Court looks beyond the text of the Executive Order to determine whether there was an impermissible purpose to disfavor Muslim individuals on the basis of their religion, which would be an unconstitutional violation of the First Amendment Establishment Clause:

“The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti- Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States….like EO-1, EO-2’s purpose is to effectuate the promised Muslim ban, and that its changes from EO-1 reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States. 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.”

The Court also notes:

“EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult.”

While the dissenting opinions attack the majority opinion for reliance on candidate Trump’s statements as relevant to the review of the Executive Order issued by President Trump, the Court responds with the facts:

“For a past statement to be relevant to the government’s purpose, there must be a substantial, specific connection between it and the challenged government action. And here, in this highly unique set of circumstances, there is a direct link between the President’s numerous campaign statements promising a Muslim ban that targets territories, the discrete action he took only one week into office executing that exact plan, and EO-2, the ‘watered down’ version of that plan that ‘get[s] just about everything,’ and ‘in some ways, more.’…To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.”

The Court states emphatically:

“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. 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. EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.”

The Court has a final constitutional law lesson on the three branches of government:

“…we reject the notion that the President, because he or she represents the entire nation, suffers irreparable harm whenever an executive action is enjoined. This Court has held that the Government is ‘in no way harmed by issuance of a preliminary injunction which prevents [it] from enforcing restrictions likely to be found unconstitutional.’… ‘If anything,’ we said, ‘the system is improved by such an injunction.’…Because Section 2(c) of EO-2 is likely unconstitutional, allowing it to take effect would therefore inflict the greater institutional injury.”

The Court quotes a 1967 U.S. Supreme Court ruling to turn the President’s national security argument on its head:

“Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this Nation apart…[O]ur country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”

The Court concludes:

“…the Government’s asserted national security interest in enforcing Section 2(c) appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country. We remain unconvinced that Section 2(c) has more to do with national security than it does with effectuating the President’s promised Muslim ban….on balance, we cannot say that the Government’s asserted national security interest outweighs the competing harm to Plaintiffs of the likely Establishment Clause violation. For similar reasons, we find that the public interest counsels in favor of upholding the preliminary injunction. As this and other courts have recognized, upholding the Constitution undeniably promotes the public interest….when we protect the constitutional rights of the few, it inures to the benefit of all.”

The Court has a final admonition for the President:

“Improper government involvement with religion ‘tends to destroy government and to degrade religion,’…encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group.”

The Trump Administration has stated that it would appeal this latest decision to the U.S. Supreme Court.

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