President Trump’s halt to visits to the United States by people from six majority-Muslim countries excludes people from the United States based on their religious beliefs in violation of the First Amendment, the Fourth Circuit ruled on Thursday in yet another rebuke to the White House over the constitutionality of its travel ban.
The executive order that enshrines the ban “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination,” Chief Judge Roger Gregory wrote on behalf of 10 of his colleagues at the outset of a 67-page opinion published Thursday by the court’s majority.
What a remarkable set of opinions. https://t.co/wSpfyHXiEG
— Omar C. Jadwat (@OmarJadwat) May 25, 2017
The ruling means that an order by a district judge in Maryland that blocks implementation of the ban nationwide will remain in effect pending a determination by the Supreme Court, to which the administration said it would appeal. A ruling by the Ninth Circuit, which also is weighing the travel ban’s constitutionality, is expected shortly.
Words matter
In support of its conclusion that the travel ban disfavors Islam, the court relied on a series of statements that the president and his surrogates uttered before and after the election. They range from a statement in December 2015 by Trump that called for “a total and complete shutdown of Muslims entering the United States,” to statements by the president in January that his order aimed to promote Christianity, to comments in February by White House adviser Stephen Miller that the revised order reflects “the same basic policy outcome for the country” as the order it replaced.
Those statements, together with “the post hoc nature of the national security rationale” and evidence from national security agencies that a revised version of the travel ban signed in March by Trump would have no effect on national security persuaded the court that the administration’s leaning on national security “was provided in bad faith, as a pretext for [the order’s] religious purpose,” Gregory wrote.
Despite the urging of the government, the majority refused to disregard statements by Trump solely because he uttered them as a candidate. “The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action,” said Gregory, who declined to adopt “a bright-line rule against considering campaign statements” and said the court would continue to review such statements case-by-case.
The challengers “have seriously called into question whether the stated reason for” the travel ban was provided in good faith, noted the majority, citing a concurrence by Justice Kennedy in a ruling two years ago by the Supreme Court that suggests courts should look in such instances behind the reasons the government gives to support its actions.
In dissent, Judge Paul Niemeyer rejected the majority’s reliance on campaign statements, which are “often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise,” wrote Niemeyer. “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.”
We may be about to find out.