Appeals Court Keeps Block on Revised Trump Travel Ban

By Josh Gerstein, Politico

26 May 17

Attorney general vows to take legality of executive order to Supreme Court

resident Donald Trump's revised travel ban executive order suffered another legal defeat Thursday, prompting the administration to vow an appeal to the Supreme Court.

In a 10-3 vote that broke essentially along party lines, judges of the Richmond-based 4th Circuit Court of Appeals refused to disturb a lower court ruling that halted Trump's plan to deny visas to citizens of six majority-Muslim countries.

Chief Judge Roger Gregory said in the court's majority opinion that the order was unconstitutional because it was deeply imbued with bias against Muslims — hostility the court identified as a staple of Trump's campaign trail rhetoric.

“From the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group,” Gregory wrote in a 68-page opinion endorsed by six of his colleagues.

“We are ... unmoved by the Government’s rote invocation of harm to ‘national security interests’ as the silver bullet that defeats all other asserted injuries,” the chief judge declared. “The Government’s asserted national security interest in enforcing [the six-country visa ban] appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.”

The court’s dissenters joined in a trio of opinions warning that the court’s majority was putting public safety at risk by interfering with the judgment of executive branch officials and the agility of the government’s response to the terrorist threat.

“As the end of the day, the real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm,” wrote Judge Dennis Shedd, joined by Judges Paul Niemeyer and Steven Agee. “The security of our nation is indisputably lessened as a result of the injunction. Moreover, the President and his national security advisors (and perhaps future Presidents) will be seriously hampered in their ability to exercise their ability to exercise their constitutional duty to protect this country.”

Attorney General Jeff Sessions said the administration was preparing to follow through on Trump's promises to take the issue to the Supreme Court.

“The Department of Justice strongly disagrees with the decision of the divided court, which blocks the President’s efforts to strengthen this country’s national security," Sessions said in a statement. "The President is not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk to the United States....This Department of Justice will continue to vigorously defend the power and duty of the Executive Branch to protect the people of this country from danger, and will seek review of this case in the United States Supreme Court.”

A White House statement criticizing the 4th Circuit ruling appeared to allude to the terrorist attack that killed 22 people earlier this week outside a concert in Manchester, England.

"These clearly are very dangerous times and we need every available tool at our disposal to prevent terrorists from entering the United States and committing acts of bloodshed and violence," White House spokesman Michael Short said. "We are confident the President's executive order to protect the country is fully lawful and ultimately will be upheld by the Judiciary."

A panel of another federal appeals court — the San Francisco-based 9th Circuit — is considering whether to lift an even broader order blocking the enforcement of parts of Trump's directive.

Trump issued his first executive order seven days after he took office, but the measure was largely halted in an earlier round of legal action. In March, he withdrew the previous foray and reissued a narrowed version of the order.

The president billed both directives as a way to counter the threat of terrorism on U.S. soil, but critics have branded the orders as transparent attempts to carry out the "Muslim ban" Trump promised during last year's presidential campaign.

The 4th Circuit majority opinion seizes on statements from White House officials, including senior adviser Stephen Miller and press secretary Sean Spicer, indicating that the new executive order was closely tied to the first one and was intended to accomplish the same purposes.

Several of the judges who voted to uphold the injunction against Trump’s order wrote separately to explain their rationale.

Judge Barbara Keenan said Trump’s order failed to meet the threshold set in federal immigration law that allows the president to suspend entry of any individual or group if letting them in “would be detrimental to the interests of the United States.” She said Trump’s order mentions weaknesses in vetting, but “does not identify a basis for concluding” why any of the 180 million people covered by the visa ban are likely to pose a threat.

While Judge Stephanie Thacker voted to uphold the injunction, she agreed with her Republican-appointed colleagues that the courts should not take account of statements Trump made on the campaign trail or at any time before he took office.

“Campaign speeches are inevitably scattered with bold promises, but once the dust settles after an election – when faced with the reality of the office and with benefit of wise counsel – a newly inducted public official may act with a different philosophy,” wrote Thacker, an appointee of President Barack Obama. “Presidents throughout history have dialed back or even reversed campaign promises.”

Writing for the dissenters, Niemeyer predicted that the Supreme Court will reject the majority’s decision to parse statements made during the heat of a campaign.

“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,” he wrote.

However, Gregory said he and the judges who joined his majority opinion were untroubled by the prospect that the court’s review might discourage rhetoric like the comments Trump made about Muslims on the campaign trail.

“To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint,” he wrote.

Thursday’s appeals court ruling contained one minor, almost technical victory for the president: The 4th Circuit said the district court should not have issued an injunction against Trump himself. The majority said that is only proper in “the rarest of circumstances” and was not appropriate in this case.

However, the distinction is of no practical help to the administration because the injunction remains in effect against the major government agencies and officials involved in carrying out the order, including the State Department and Department of Homeland Security.

All of the judges who voted to uphold the injunction are Democratic appointees, except for Gregory, whose judicial pedigree is more complex. He was nominated to the court by President Bill Clinton in 2000 and installed on the court via a recess appointment later that year after the Senate failed to act on his nomination. In 2001, President George W. Bush re-nominated Gregory, who was soon confirmed by the Senate, 93-1.

Due to the significance of the issues presented by the case, the 4th Circuit decided to immediately take the matter to the court’s full bench, rather than the usual three-judge panel. Two of the court’s 15 judges — both Republican appointees — recused from the appeal.

The case before the appeals court was brought by two refugee aid groups, the International Refugee Assistance Project and HIAS, as well as the Middle East Studies Association and several individuals. They were represented by lawyers from the American Civil Liberties Union and the National Immigration Law Center.