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Travel ban remains on hold following 4th Circuit ruling [UPDATED]

[UPDATED at 10:12 a.m. on Friday, May 26, to include a press release by Attorney General Jeff Sessions, who indicated that the Trump administration intends to ask the Supreme Court to step in.]

A divided U.S. Court of Appeals for the 4th Circuit today largely upheld a federal district judge’s ruling blocking the implementation of the executive order signed by President Donald Trump on March 6. The order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as well as the admission of refugees into the United States, but a federal judge in Maryland put the order on hold 10 days later. That order now remains in place, setting up a potential showdown over the travel ban in the Supreme Court.

Writing for the court in an opinion that was joined in full by six other judges, with three more agreeing with the result in the case, Chief Judge Roger Gregory framed the issue before the 4th Circuit starkly: whether the Constitution protects the challengers’ “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.” Congress, the court concluded, gave the president “broad power to deny entry to aliens, but that power is not absolute.”

The court began with an important threshold question: whether the challengers – who have argued that the executive order violates (among other things) the Constitution’s bar against favoring one religion over another – have a legal right to sue at all. They do, the 4th Circuit concluded today, because at least one plaintiff, known as “John Doe #1,” has felt “the direct, painful effects” of the executive order “in his everyday life.” Doe is seeking a visa for his wife, who is currently in Iran; if the order were in effect, the court explained, there would be a “real and immediate threat that it would prolong” Doe’s separation from his wife. And as a Muslim born outside the United States, Doe suffers from “feelings of marginalization and exclusion.”

The court then turned to another central point of contention in the case: whether the district court used the right legal test to evaluate the challengers’ claims that the executive order violates the Constitution. The district court relied on a standard known as the “Lemon test,” first outlined in a 1971 Supreme Court case, that courts use to determine whether a law violates the Establishment Clause. However, the government contended that the court should look instead at a 1972 case involving the denial of a visa to a Belgian journalist who described himself as a Marxist, which prescribes a fairly limited and deferential review in the immigration arena.

The 4th Circuit opted for a middle ground. It agreed with the government that the 1972 immigration case was the “starting point” for its analysis, but it found a role for the Supreme Court’s Establishment Clause doctrine as well. In the court’s view, the 1972 case “imposes a heavy burden on the” challengers: The order can survive as long as it is “facially legitimate” – that is, there was a valid reason for it – and issued in good faith. The government can meet the first test, the court reasoned, because the order indicates that it was intended to protect the United States from foreign terrorists. But it cannot meet the “good faith” requirement, the court concluded, because there is “ample evidence” that the order was not actually based on national-security concerns. Instead, the court suggested, the national-security concerns were simply a “pretext for what is really an anti-Muslim religious purpose.”

Because the challengers had shown bad faith, the court continued, the proper next step is to apply the “Lemon test” to determine whether the executive order violated the Constitution, because the Establishment Clause limits what the executive and legislative branches can do in the immigration arena. At the oral argument earlier this month, much of the debate focused on whether the judges should consider Trump’s statements, both as a candidate running for office and later as the president, about banning Muslims from the United States in evaluating the purpose of the order. The majority concluded that – at least in this case, which it characterized as presenting a “highly unique set of circumstances” – it could. Those statements, it emphasized, “provide direct, specific evidence of what motivated” both the executive order at issue in this case and the earlier one that preceded it: “President Trump’s desire to exclude Muslims from the United States.”

The court of appeals vacated the part of the district court’s order that applied specifically to the president, but it otherwise left the order, which applies throughout the United States, intact. And the court had strong words for the Trump administration, noting that it had “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.”

Three judges dissented from today’s ruling: Judges Paul Niemeyer, Dennis Shedd and G. Steven Agee. Another challenge to the travel ban is pending in the U.S. Court of Appeals for the 9th Circuit, which heard oral argument in that case on May 15. In a press release, Attorney General Jeff Sessions disagreed with the ruling, describing the executive order as “well within” the president’s “lawful authority to keep the Nation safe,” and indicated that the government planned to seek review of the decision in the Supreme Court. The government has 90 days to do so, although it likely will act sooner.

Recommended Citation: Amy Howe, Travel ban remains on hold following 4th Circuit ruling [UPDATED], SCOTUSblog (May. 25, 2017, 5:21 PM),