Appeals court upholds travel ban block
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.
In a 10-3 vote, the U.S. Circuit Court of Appeals for the 4th Circuit 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, Va.-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 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.
White House spokesman Michael Short said the administration was confident its order is legal.
“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,” he said.
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.”
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.