In a 9-4 vote, the Fourth Circuit Court of Appeals on Thursday upheld a lower court's preliminary injunction preventing enforcement of US President Donald Trump's most recent travel ban.
Undisputed evidence of bias: President Trump's words
While examining whether the Proclamation was tainted with anti-Muslim bias, the Court noted that instead of just allegations, the Plaintiffs had presented "undisputed evidence of such bias: the words of the President". These included 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; and the Proclamation itself.
Notably, the Court focused on statements made after Trump's inauguration, finding that "we need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation". Referring to various statements made by President Trump after assuming power, the Court observed,
"Rather, an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation—to exclude Muslims from the United States...
... The Government correctly points out that the President’s past actions cannot “forever taint” his future actions. See McCreary, 545 U.S. at 874; First Br. 18. President Trump could have removed the taint of his prior troubling statements; for a start, he could have ceased publicly disparaging Muslims... In fact, instead of taking any actions to cure the “taint” that we found infected EO-2, President Trump continued to disparage Muslims and the Islamic faith."
4th Circuit Chief Judge Roger Gregory opined that the "contradiction" between what the Proclamation says—that it merely reflects the results of a religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s proffered purpose, and undermines the Government’s argument that its multi-agency review cured any earlier impermissible religious purpose.
The Proclamation, when read in the context of President Trump's official statements, he said, "fails to demonstrate a primarily secular purpose". He further observed,
"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.”"
Judge Gregory also refused to accept the contention that the Proclamation was secular as it banned two non-majority Muslim countries, North Korea and Venezuela.
Reasons favoring injunctive relief
With regard to the injunctive relief, Judge Gregory observed that the balance of equities rested in favor of the Plaintiffs and that the Government would not be harmed by an injunction against the enforcement of a likely unconstitutional Proclamation.
Noting that the Plaintiffs have demonstrated a likelihood of irreparable harm, he observed,
"We further agree with the district court that the individual Plaintiffs whose family members are categorically rendered ineligible for visas have demonstrated a likelihood of irreparable harm. Prolonged and indefinite separation of parents, children, siblings, and partners create not only temporary feelings of anxiety but also lasting strains on the most basic human relationships cultivated through shared time and experience."
Judge Gregory went on to make some scathing remarks against the Proclamation, opining that the Proclamation has a "much broader deleterious effect on the public interest than the simple fact that certain foreign nationals are excluded", and that it "denies the possibility of a complete, intact family to tens of thousands of Americans".
"On an economic level, the Proclamation inhibits the normal flow of information, ideas, resources, and talent between the Designated Countries and our schools, hospitals, and businesses.18 On a fundamental level, the Proclamation second-guesses our nation’s dedication to religious freedom and tolerance," the Judge added.
The Court further ruled that the District Court did not abuse its discretion in imposing a nationwide injunction, noting that the Court had narrowed down the scope of the injunction to only those individuals “who have a credible claim of a bona fide relationship with a person or entity in the United States”.
"First, Plaintiffs are scattered throughout the country, making piecemeal injunctive relief difficult... Second, “Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly.’”... Finally, because we find that the Proclamation was issued in violation of the Constitution, enjoining it only as to Plaintiffs would not cure its deficiencies."
In a dissenting opinion, Judge Paul Niemeyer said the 4th Circuit’s ruling was an attempt to “second-guess U.S. foreign policy, in particular, the president’s discretionary decisions on immigration, implicating matters of national security”.
Judge Niemeyer opined that the majority should have based its decision on the text of the presidential proclamation alone and should not have considered Trump's statements. He wrote,
"At bottom, the danger of this new rule is that it will enable a court to justify its decision to strike down any executive action with which it disagrees. It need only find one statement that contradicts the official reasons given for a subsequent executive action and thereby pronounce that the official reasons were a pretext."