Thursday, February 15, 2018

4th Circuit En Banc Says Trump's Third Travel Ban Violates Establishment Clause

The U.S. 4th Circuit Court of Appeals en banc today, in opinions spanning 285 pages, affirmed a Maryland federal district court's grant of a preliminary injunction against the Proclamation setting out the third version of President Trump's travel ban.  In International Refugee Assistance Project v. Trump, (4th Cir. en banc, Feb. 15, 2018), the court by a vote of 9-4 held that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.  Chief Judge Gregory's majority opinion said in part:
[H]ere the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.....
While the majority ultimately concluded that it would not rely on President Trump's pre-election statements in reaching its conclusion, it nevertheless indicated that it would have been permissible to do so:
Perhaps in implicit recognition of the rawness of the religious animus in the President’s pre-election statements, the Government urges us to disregard them. This is a difficult argument to make given that the President and his advisors have repeatedly relied on these pre-election statements to explain the President’s post-election actions related to the travel ban....  [I]n McCreary, the Supreme Court reminded us that “the world is not made brand new every morning.” .... Because “reasonable observers have reasonable memories,” these statements certainly provide relevant context when examining the purpose of the Proclamation.
The majority concluded:
In sum, the face of the Proclamation, read in the context of President Trump’s official statements, fails to demonstrate a primarily secular purpose. To the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective. Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”
Six of the judges would have also found a likelihood of success on at least some of plaintiffs' statutory challenges to the Proclamation. Four concurring opinions and two dissenting opinions were also filed. Pursuant to an earlier U.S. Supreme Court order, the court stayed the injunction pending a petition for certiorari to the Supreme Court. Richmond Times-Dispatch reports on today's decision.