Fed­eral ap­peals court deals blow to Don­ald Trump’s re­vised travel ban

The Hamilton Spectator - - FRONT PAGE - JES­SICA GRESKO

WASH­ING­TON — Pres­i­dent Don­ald Trump’s re­vised travel ban “speaks with vague words of na­tional se­cu­rity, but in con­text drips with re­li­gious in­tol­er­ance, an­i­mus and dis­crim­i­na­tion,” a fed­eral ap­peals court said Thurs­day in rul­ing against the ex­ec­u­tive or­der tar­get­ing six Mus­lim-ma­jor­ity coun­tries.

Trump’s ad­min­is­tra­tion vowed to take the fight to the U.S. Supreme Court.

In a 10-3 vote, the 4th U.S. Cir­cuit Court of Ap­peals said the ban likely vi­o­lates the Con­sti­tu­tion. And it up­held a lower-court rul­ing that blocks the Repub­li­can ad­min­is­tra­tion from cut­ting off visas for peo­ple from Iran, Libya, So­ma­lia, Su­dan, Syria and Ye­men.

The Rich­mond, Vir­ginia-based 4th Cir­cuit is the first ap­peals court to rule on the re­vised travel ban un­veiled in March. Trump’s ad­min­is­tra­tion had hoped it would avoid the le­gal prob­lems that the first ver­sion from Jan­uary en­coun­tered. A sec­ond ap­peals court, the 9th U.S. Cir­cuit based in San Fran­cisco, is also weigh­ing the re­vised travel ban af­ter a fed­eral judge in Hawaii blocked it.

The Supreme Court al­most cer­tainly would step into the case if asked. The jus­tices al­most al­ways have the fi­nal say when a lower court strikes down a fed­eral law or pres­i­den­tial ac­tion.

Trump could try to per­suade the Supreme Court to al­low the pol­icy to take ef­fect, even while the jus­tices weigh whether to hear the case, by ar­gu­ing that the court or­ders block­ing the ban make the coun­try less safe. If the ad­min­is­tra­tion does ask the court to step in, the jus­tices’ first vote could sig­nal the court’s ul­ti­mate de­ci­sion.

A cen­tral ques­tion in the case be­fore the 4th Cir­cuit was whether courts should con­sider Trump’s pub­lic state­ments about want­ing to bar Mus­lims from en­ter­ing the coun­try as ev­i­dence that the pol­icy was pri­mar­ily mo­ti­vated by the re­li­gion.

Trump’s ad­min­is­tra­tion ar­gued the court should not look be­yond the text of the ex­ec­u­tive or­der, which doesn’t men­tion re­li­gion.

The coun­tries were not cho­sen be­cause they are pre­dom­i­nantly Mus­lim but be­cause they present ter­ror­ism risks, the ad­min­is­tra­tion said.

But Chief Judge Roger L. Gre­gory wrote that the gov­ern­ment’s “as­serted na­tional se­cu­rity in­ter­est ... ap­pears to be a post hoc, sec­ondary jus­ti­fi­ca­tion for an ex­ec­u­tive ac­tion rooted in re­li­gious an­i­mus and in­tended to bar Mus­lims from this coun­try.”

At­tor­ney Gen­eral Jeff Ses­sions said the court’s rul­ing blocks Trump’s “ef­forts to strengthen this coun­try’s na­tional se­cu­rity.”

Trump is not re­quired to ad­mit peo­ple from “coun­tries that spon­sor or shel­ter ter­ror­ism un­til he de­ter­mines that they can be prop­erly vet­ted” and don’t pose a se­cu­rity threat, Ses­sions said.

The three dis­sent­ing judges, all ap­pointed by Repub­li­can pres­i­dents, said the ma­jor­ity was wrong to look be­yond the text of the or­der. Calling the ex­ec­u­tive or­der a “mod­est ac­tion,” Judge Paul V. Niemeyer wrote that Supreme Court prece­dent re­quired the court to con­sider the or­der “on its face.” Looked at that way, the ex­ec­u­tive or­der “is en­tirely with­out con­sti­tu­tional fault,” he wrote.

Ilya Somin, a law pro­fes­sor at Ge­orge Ma­son Univer­sity, said if the Supreme Court fol­lows a par­ti­san di­vide, the Trump ad­min­is­tra­tion may fare bet­ter since five of the nine are Repub­li­can nom­i­nees. Still, he said, it’s dif­fi­cult to make a con­fi­dent pre­dic­tion be­cause “Supreme Court jus­tices don’t al­ways vote in ide­o­log­i­cal lock­step.”

The first travel ban is­sued Jan. 27 was aimed at seven coun­tries and trig­gered chaos and protests across the coun­try as trav­ellers were stopped from board­ing in­ter­na­tional flights and de­tained at air­ports for hours. Trump tweaked the or­der af­ter the 9th U.S. Cir­cuit Court of Ap­peals re­fused to re­in­state the ban.

The new ver­sion made it clear the 90day ban cov­er­ing those six coun­tries doesn’t ap­ply to those who al­ready have valid visas. It got rid of lan­guage that would give pri­or­ity to re­li­gious mi­nori­ties and re­moved Iraq from the list of banned coun­tries.


Chief Jus­tice Roger L. Gre­gory of the 4th U.S. Cir­cuit Court of Ap­peals wrote in his rul­ing that na­tional se­cu­rity ap­peared to be a sec­ondary jus­ti­fi­ca­tion for the travel ban.

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