Trump travel ban dealt a blow from 2nd appeals court

Unconstitutional, ruling says, citing anti-Muslim bias of president’s words

A second federal appeals court on Thursday struck down President Donald Trump’s latest version of the immigrant travel ban, saying it “is unconstitutionally tainted with animus toward Islam.”

The 9-4 decision by the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., took a deep dive into Trump’s statements and tweets since he became president and concluded that the third iteration of his proclamation, like the first two, was motivated not by national security concerns but by antipathy toward Muslims.

“The government’s proffered rationale for the proclamation lies at odds with the statements of the president himself,” wrote Chief Judge Roger Gregory.

“Plaintiffs here do not just plausibly allege with particularity that the proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the president.”

The ruling, upholding an injunction by a federal judge in Maryland barring enforcement of the travel ban, has no immediate effect. The Supreme Court is already scheduled to decide the legality of the travel ban, holding oral arguments in April and deciding by the term’s

conclusion at the end of June.

The U.S. Court of Appeals for the 9th Circuit in San Francisco has also struck down the ban, saying the president violated limits put in place by Congress. As it did in striking down an earlier version of the ban, the 4th Circuit’s opinion issued Thursday said the ban violated the Constitution’s prohibition on religious discrimination.

The Justice Department had no immediate reaction to the ruling.

Seven of the 13 judges wrote separately to explain their reasoning.

Judge Paul Niemeyer, one of the dissenters, denounced his colleagues’ “bold effort to second-guess U.S. foreign policy and, in particular, the president’s discretionary decisions on immigration, implicating matters of national security.”

He added that the majority should have based its decision on the text of the presidential proclamation alone and not considered statements Trump made on the campaign trail and after he became president.

“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,” Niemeyer wrote.

One judge, William Traxler, was in the majority when the 4th Circuit ruled that Trump’s second travel ban was illegal. But he sided with the dissenters this time.

The third version must be judged based on the “context of the investigation and analysis that the agencies acting on the president’s behalf have completed, the consultation that has taken place between the president and his advisers, and the logical conclusions and rationale for the proclamation that are documented therein.”

Traxler was referring to the government’s argument that a long investigation had gone into deciding which countries did not properly vet those leaving their shores for the United States. Based on that investigation, it said, the administration decided to have the ban cover a slightly different list of countries than in the first two versions.

The current version affects various travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela.

During a hearing before

the 4th Circuit in December, Deputy U.S. Assistant Attorney General Hashim Mooppan told the judges that the president has broad authority to bar foreigners who he believes would be detrimental to the interests of the United States.

He cited a global, multiagency review that found the specified countries do not share enough security-related information with the U.S. He said the ban is designed to protect the nation from terrorism and other threats.

Two federal judges — in Maryland and Hawaii — had blocked implementation of the ban, at least in part. In December, the U.S. Court of Appeals for the 9th Circuit upheld the Hawaii ruling, although it said it would allow the administration to enforce the ban on travelers without close U.S. ties, such as relatives. That appeals court ruling also was put on hold in a nod to the Supreme Court.

In early December, the high court had lifted injunctions issued by the judges in Hawaii and Maryland and aldecade lowed the ban to fully take effect while the legal challenges continue.

In an opinion concurring with the majority of the 4th Circuit panel, Judge Pamela Harris said deciding that the ban violated the Constitution might in the end be a more narrow decision than deciding thorny questions about the president’s powers under federal statutes governing immigration.

In essence, she wrote, there was no reason to believe that future presidents will take the tack Trump has taken.

“The principle that government decision-making should not be informed by religious animus is so well and deeply understood in this country that there are few violations recorded in the case law,” she wrote. “Though we must today add one more to the list, we have every reason to expect that future occasions for application of this fact-specific holding will be few and far between.”

Cecillia Wang, the American Civil Liberties Union deputy legal director, who argued the case before the 4th Circuit in December, said the court once again got it right.

“President Trump’s third illegal attempt to denigrate and discriminate against Muslims through an immigration ban has failed in court yet again,” she said in a statement. “It’s no surprise. The Constitution prohibits government actions hostile to a religion.”

The International Refugee Assistance Project, one of the groups challenging the ban, said the policy has had a “devastating impact” on U.S. families waiting to reunite with their family members and on foreign students seeking educational opportunities in the U.S.

“Today’s ruling affirms that they are being unjustly targeted by this ban,” said Mariko Hirose, the group’s litigation director.

Trump announced his initial travel ban on citizens of certain Muslim-majority nations shortly after taking office in January, raising havoc and protests to airports around the United States. A federal judge in Seattle soon blocked it, and courts since then have wrestled with the restrictions as the administration has rewritten them.

The latest version blocks travelers from the listed countries to varying degrees, allowing for students from some, while blocking other business travelers and tourists, and allowing for admissions on a case-by-case basis.

Information for this article was contributed by Robert Barnes and Ann E. Marimow of The

Washington Post and by Denise Lavoie of The Associated Press.