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Judicial review: 4th Circuit Court freezes Trump travel ban
by Joseph Earnest May 26, 2017
Newscast Media RICHMOND, Va—A panel of 10 of the 13 judges from the 4th Circuit Court have ruled that President Donald Trump's travel ban of nationals from six predominantly Muslim countries namely: Iran, Libya, Somalia, Sudan, Syria, and Yemen, should be blocked. Three of the judges dissented and sided with Trump.
In Section 2(c) of the President's second of Executive Order (EO-2), the President suspended the entry of nationals from the six Designated Countries, pursuant to his power to exclude aliens under Section 212(f) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1182(f). The Government contends that Section 2(c)’s suspension of entry falls squarely within the “expansive authority” granted to the President by § 1182(f)
Section 1182(f), entitled “Suspension of entry or imposition of restrictions by President, provides in pertinent part that:
"[W]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."
The judges in affirming the lower court's decision to put a hold on Trump's travel ban of Muslims cited several instances in which Trump made campaign promises that he would ban Muslims from entering the USA. The judges concluded that Trump's ban as a president has nothing to do with national security, rather, he is simply fulfilling a campaign promise.
For example, the judges opined that on December 7, 2015, then-candidate Trump published a “Statement on Preventing Muslim Immigration” on his campaign website, which proposed “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
Trump read from the statement at a campaign rally in Mount Pleasant, South Carolina, that evening, where he remarked, “I have friends that are Muslims. They are great people—but they know we have a problem.”
The judges also said in a March 22, 2016 interview with Fox Business television, Trump reiterated his call for a ban on Muslim immigration, claiming that this proposed ban had received “tremendous support” and stating, “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.You need surveillance, Trump explained, and “you have to deal with the mosques whether you like it or not.”
Again on December 19, 2016, following a terrorist attack in Germany, the judges said President-Elect Trump lamented the attack on people who were “prepared to celebrate the Christmas holiday” by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.”
In yet another example the judges who ruled against Trump said the President gave an interview to the Christian Broadcasting News on January 27, 2017, the same day he issued the First Executive Order. In that interview, the President explained that EO-1 would give preference to Christian refugees: “They’ve been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible . . .”
Beyond claiming injury to their family relationships, several of the individual Plaintiffs suing Trump alleged that the anti-Muslim message animating EO-2 has caused them feelings of disparagement and exclusion.
Two of the organizational Plaintiffs, the International Refugee Assistance Project and the Hebrew Immigrant Aid Society, primarily assist refugees with the resettlement process. These organizations claim that they have already diverted significant resources to dealing with EO-2’s fallout, and that they will suffer direct financial injury from the anticipated reduction in refugee cases. They further claim that their clients, who are located in the United States and the Middle East, will be injured by the delayed reunification with their loved ones, if Trump's ban becomes effective..
In the lengthy ruling, the 4th Circuit said when a court considers whether a challenged government action’s primary purpose is secular, it attempts to discern the “official objective . . . from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.” The court acts as a reasonable, “objective observer,” taking into account “the traditional external signs that show up in the ‘text, legislative history, and implementation of the statute,’ or comparable official act.”
The 4th Circuit concluded that the evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States, the ruling read.
However, not all judges agreed with the 4th Circuit's ruling. Three dissenting judges said, "In affirming the district court’s ruling based on the Establishment Clause, the majority looks past the face of the Order’s statements on national security and immigration, which it concedes are neutral in terms of religion, and considers campaign statements made by candidate Trump to conclude that the Order denigrates Islam, in violation of the Establishment Clause. This approach (1) plainly violates the Supreme Court’s directive in previous cases; (2) adopts a new rule of law that uses campaign statements to recast the plain, unambiguous, and religiously neutral text of an executive order; and (3) radically extends the Supreme Court’s Establishment Clause holdings."
The case is therefore set to go before the highest Court in the land for a final decision.
The entire opinion of the 4th Circuit can be read or downloaded here>>
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