Sun Sentinel Palm Beach Edition
Appeals court upholds block on U.S. travel ban
Decision another legal setback to administration
WASHINGTON — President Donald Trump suffered another legal defeat Thursday when the U.S. appeals court in Virginia ruled his foreign travel ban may not be enforced, bluntly saying that it appears to discriminate based on religion and that the administration’s argument that the order was needed to protect national security was a “pretext” offered in “bad faith.”
The 10-3 decision from the 4th U.S. Circuit Court of Appeals kept in place nationwide orders from two district judges that had blocked the president’s revised decree. His order aimed to restrict new immigrants and travelers from six majority Muslim nations.
All 10 judges in the majority were Democratic appointees. The three Republican appointees dissented.
Although the decision was another sweeping defeat for the president and his lawyers, it clears the way to them to take the issue to the U.S. Supreme Court, where a conservative majority gives them a better chance of prevailing.
In a statement, Attorney General Jeff Sessions said the administration “strongly disagrees” with the ruling and would ask the high court to review the case.
“The president is not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk to the United States,” Sessions said. “President Trump’s executive order is well within his lawful authority to keep the nation safe.”
Thursday’s decision was the latest in which Trump’s words formed the core of the case against him.
In issuing the limited travel ban, Trump said the temporary restrictions were needed because of the threat of terrorists arriving from countries, including Libya, Somalia, Sudan and Yemen. The judges in the majority said they did not believe that was true purpose. Iran and Syria also are on the list.
Trump’s order “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination,” Chief Judge Roger Gregory wrote. He said the order conflicts with the First Amendment’s ban on “laws respecting an establishment of religion.”
Much of Gregory’s opinion recited statements from candidate Trump, including his call for a “total complete shutdown of Muslims entering the United States,” and comments since his election that blamed Muslims for the threat of terrorism.
Those “statements, taken together, provide direct, specific evidence of what motivated” the travel order, Gregory wrote: “President Trump’s desire to exclude Muslims from the United States.”
That motivation tainted the original order, which Trump issued during his first week in office, and a revised version issued in March, the court said.
The three dissenters faulted the majority for ignoring Supreme Court rulings that called for deference to presidential authority over immigration.
Judge Paul Niemeyer, an appointee of President George H.W. Bush, also derided the majority for “fabricating a new proposition of law” that allows judges to use campaign statements to decide on the president’s actions in office.
“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,” he wrote.
He was equally scathing in accusing the majority of “radically extending” Supreme Court rulings on the Constitution’s guarantee of religious freedom in ways that would limit the president’s power over foreign affairs.
Omar Jadwat, the American Civil Liberties Union lawyer who argued the case, called the decision a victory for the Constitution. Its “prohibition on actions disfavoring or condemning any religion is a fundamental protection for all of us, and we can all be glad that the court today rejected the government’s request to set that principle aside.”
Trump initial travel ban caused chaos at airports around the nation and the world. It disrupted travel for thousands who live and work in the U.S., including students, professors, tech executives and tourists.
It was stopped by a federal judge in Seattle and by the 9th Circuit Court.
The president and his advisers retreated and issued a scaled-back order that applied only to foreigners who lived abroad and had yet to obtain a visa to come to the United States.