The Fourth Court of Appeals in Richmond, Virginia has upheld the lower court’s preliminary injunction regarding the Trump travel ban. This ruling applies to the second ban, not the first. The second ban was written better after the administration encountered so many problems with the first ban.
A Maryland district court issued the preliminary injunction. Thirteen judges heard the appeal, indicating it was an en banc ruling. At the hearing, many of the judges were skeptical that the ban did not have the desired effect of applying to Muslims. The lengthy decision refers to Pres. Trump’s comments about Islam. It discussed comments by administration officials. The court found the ban implicated the establishment of religion clause in the U.S. Constitution. That clause forbids the government from establishing any one particular religion.
Among the facts causing concern for the court were the first travel ban. The administration claims the first travel ban and the second were based on national security concerns. But, the alleged national security issues were not identified until after the administration issued the first travel ban. Too, one recent report by the Department of Homeland Security explicitly said that most terrorist acts were committed by persons who grew up in the U.S. The report mentioned that no one has died at the hands of any person from the six nations identified in the second travel ban in the last 40 years.
In a display of poor appellate strategy, DOJ argued that “unofficial” comments by a candidate should not be considered, especially those made during a campaign. The government lawyers made the specious argument that somehow when Candidate Trump became President Trump, his statements became less probative. But, citing to various caselaw involving candidates for election and other issues, the court noted that such statements are probative if closely related in time and if uttered by the same deciding official. The court added, “Just as the reasonable observer’s world is not made brand new with every morning, . . . nor are we able to awake without the vivid memory of these statements.” The court cited to McReary County v. ACLU, 545 U.S. 844, at 866 (2005). Quoting Jonathan Swift, Polite Conversation (Chiswick Press, 1892), the court added a comment that we cannot shut our eyes to such evidence when it starts us in the face and there are none so blind as those who cannot see. Slip opinion, at 66. Anytime a court reaches back to the 1800’s for a non-law related book, you know the court is annoyed. The court was annoyed with the administration’s disingenuous attempt to pretend Pres. Trump did not say the things the country knows he said.
[Note: It is very poor form to argue obvious fallacies. It is a technique likely to lead to defeat. If a normal litigator had tried to argue an obvious fallacy like Candidate and President Trump’s comments about Muslims, the court would come down very hard on us.]
The DOJ also argued that the second travel ban was neutral in its language. But, responded, the court, even a neutral executive order can discriminate. See the Fourth Circuit’s decision in International Refugee Project v. Trump, No. 17-1351 (5/25/2017) here. The Fourth Circuit was once one of the two most conservative courts in the country. It is perhaps more liberal now than it was. The court reached this result with a 10-3 vote. See CBS news report here.
There is another preliminary inunction working its way through the appellate process in the Ninth Circuit. A federal judge in Hawaii also issued an injunction against the travel ban.