EN BANC FOURTH AFFIRMS NATIONWIDE TRAVEL-BAN INJUNCTION
(Posted May 25, 2017) The Fourth Circuit ruled today in Int’l Refugee Assistance Project v. Trump, the appeal of the President’s revised nationwide travel ban directed to travelers from several predominantly Muslim nations. The en banc court – minus two members who recused themselves – acted quickly, handing down the decision just 16 days after entertaining oral argument earlier this month.
There are eight opinions in all. The chief judge assigned to himself the majority, and four other members of the court filed concurrences. Three judges – Niemeyer, Shedd, and Agee – filed dissents, with each of the dissenters joining both of his colleagues. It is a labor to plow through them all; they aggregate to 205 pages. (To be fair, it takes a good, solid eleven pages just to list the names of the parties, the amici, and everyone’s lawyer.) The eventual vote is 10-3 to affirm.
SCOTUS has cautioned against injunctions directed to the President, noting that a “grant of injunctive relief against the President himself is extraordinary, and should . . . raise judicial eyebrows.” (I like it when jurists go beyond the basic to craft a notable turn of phrase.) The court accordingly dissolves the injunction as to the President personally, expressing confidence that he’ll abide by the directive anyway.
But that’s about all that goes well for the President. The court affirms the injunction on a nationwide scale after analyzing the factors set out in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). Note that that case discusses the standards for granting a preliminary injunction, and that’s all that’s at stake here; the underlying case is still very much alive in the district court, though it’s on hold because of this appeal.
In affirming, the majority – though not all the concurrers – look to statements made by Candidate Trump, not merely those made after Inauguration Day. This raises an interesting philosophical (and even constitutional) point: Won’t it chill political speech, by those campaigning for office, if the candidate knows that her opponents can mine her campaign speeches for evidence in later legal actions? The majority isn’t troubled by this at all: “To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.”
The dissenters disagree, of course; here’s Judge Niemeyer’s riposte: “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 goes on to describe campaign statements as:
unbounded resources by which to find intent of various kinds. They 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. And they are often ambiguous.
(Clearly, this is a man who understands the political process quite well.)
Before getting to the merits, though, the majority must cross certain thresholds – standing and justiciability. At least some of the petitioners – notably one identified as “Doe #1 – in the underlying suit are individuals who were separated from their families as a result of the revised ban. Those petitioners have a concrete claim to individual harm.
As you might expect from a decision of this magnitude, the rhetoric soars. Here’s one example from the beginning of the majority, describing the question as:
whether [the Constitution] protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.
Let’s give the floor to the dissenters; here’s Judge Shedd:
Today’s decision may be celebrated by some as a victory for individual civil rights and justice, and by others as a political defeat for this President. Yet, it is shortsighted to ignore the larger ramifications of this decision. Regrettably, at the end of the day, the real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm. Even if the district court’s instinct is correct and no tangible harm directly results from its order enjoining the President from attempting to protect American citizens, the injunction prohibits the government from addressing a serious risk identified by the Attorney General and Homeland Security Secretary; therefore, the security of our nation is indisputably lessened as a result of the injunction. Moreover, the President and his national security advisors (and perhaps future Presidents) will be seriously hampered in their ability to exercise their constitutional duty to protect this country.
I’m going to stop here so I can post this today; you will no doubt see plenty of commentary in many other forums and from differing perspectives. Besides, if I were to cover this decision in minute detail, you’d need a long holiday weekend to read it all. (I know you have one of those coming up, but who wants to spend it reading legal analysis? Go have some fun, but do pause to remember the reason for this holiday.)