The 4th Circuit Court of Appeals, which heard the case en banc, has upheld substantially all of the Maryland District Court injunction against Trump’s revised travel Executive Order in an opinion (pdf.) dripping with politics. (Full embed at bottom of post).

The opinions (including concurring and dissenting) are 200 pages, so it will take some time to digest, but you’ll get the message from the opening paragraph:

“The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), 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 opinion is so bad, it’s hard to know where to start. Perhaps the best place is this completely foolish statement on page 17:

The Second Executive Order does not include any examples of individuals from Iran, Libya, Sudan, Syria, or Yemen committing terrorism-related offenses in the United States.

Sorry, respected and honored Judges, that’s not your call. That’s the President’s call, and the President doesn’t need to recite examples in an order or wait for people from these countries to engage in terrorism in the U.S.  (We know that people from these countries have in fact committed terrorist acts in the U.S., but that’s actually beside the point for the legal analysis. It is not up to the judges.)

The most egregious focus of the majority opinion was relying on Trump’s campaign statements (starting at page 18):

The First and Second Executive Orders were issued against a backdrop of public statements by the President and his advisors and representatives at different points in time, both before and after the election and President Trump’s assumption of office. We now recount certain of those statements….

The Court then goes on for several pages recounting news clippings and campaign statements. This is a task, the dissent correctly pointed out, that will have both a chilling effect on political speech and is legally irrelevant as to a specific Executive Order after taking office. The Court concluded that the national security justifications were a sham (page 52-60):

Based on this evidence, we find that Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose. And having concluded that the “facially legitimate” reason proffered by the government is not “bona fide,” we no longer defer to that reason and instead may “look behind” EO-2….

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….

As a candidate, Trump also suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion….

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 statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly….

EO-2 cannot be read in isolation from the statements of planning and purpose that accompanied it, particularly in light of the sheer number of statements, their nearly singular source, and the close connection they draw between the proposed Muslim ban and EO-2 itself.

The court concluded (page 69):

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. We therefore find that EO-2 likely fails Lemon’s purpose prong in violation of the Establishment Clause.22 Accordingly, we hold that the district court did not err in concluding that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.

The only part of the lower court injunction that was vacated was that part naming Trump personally:

“In light of the Supreme Court’s clear warning that such relief should be ordered only in the rarest of circumstances we find that the district court erred in issuing an injunction against the President himself. We therefore lift the injunction as to the President only. The court’s preliminary injunction shall otherwise remain fully intact.”

Three Judges (Niemeyer, Shedd, Agee) dissented:

While the [District] court acknowledged the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide” exercises of executive discretion in the immigration context to discern other possible purposes, id. at 770. Relying on statements made by candidate Trump during the presidential campaign, the district court construed the Executive Order to be directed against Muslims because of their religion and held therefore that it likely violated the Establishment Clause of the First Amendment.

I conclude that the district court seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents…..

The majority reworks the district court’s analysis by applying Mandel, albeit contrary to its holding, to defer only to the facial legitimacy of the Order but not to its facial bona fides, despite the Mandel Court’s holding that “when the Executive exercises
this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests” of the plaintiffs. Mandel, 408 U.S. at 770 (emphasis added). In addition, the majority, after violating Mandel, then adopts the same new rule of law adopted by the district court to consider candidate Trump’s campaign statements to find the Executive Order’s stated reasons “pretext[ual],” ante at 51, and then to rewrite the Order to find it in violation of the Establishment Clause. This too is unprecedented and unworkable.

The dissent took particular issue with the reliance by the majority on Trump’s campaign statements:

In affirming the district court’s ruling based on the Establishment Clause, the majority looks past the face of the Order’s statements on national security and immigration, which it concedes are neutral in terms of religion, and considers campaign statements made by candidate Trump to conclude that the Order denigrates Islam, in violation of the Establishment Clause. This approach (1) plainly violates the Supreme Court’s directive in Mandel; (2) adopts a new rule of law that uses campaign statements to recast the plain, unambiguous, and religiously neutral text of an executive order; and (3) radically extends the Supreme Court’s Establishment Clause holdings…..

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.

More to follow.


4th Circuit Decision Upholding Injunction Against Trump Travel Executive Order by Legal Insurrection on Scribd


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