(Posted February 15, 2018) The Fourth Circuit this morning hands down a decision in International Refugee Assistance Project v. Trump, the litigation involving the Trump Administration’s travel ban. By a vote of 9-4, the court affirms a Maryland district court’s ruling invalidating the government’s policy.



Chief Judge Gregory authors today’s majority opinion, which formally addresses the third executive pronouncement on immigration. The first two, known as EO-1 and EO-2 (the EO stands for Executive Order) came in the days right after the president’s inauguration, and applied to several nations that were all majority Muslim. This one was issued September 24, and covers immigration from eight nations: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. You’ll note that two of those aren’t primarily Muslim nations.

The most glaring question today is whether the addition of those two non-Muslim nations means that the September order was neutral as to religion. Today’s opinion quotes a 1971 SCOTUS opinion holding, “[T]he Establishment Clause forbids subtle departures from neutrality, ‘religious gerrymanders,’ as well as obvious abuses.” The court finds evidence to establish the real motive for the policy in a predictable place:

Examining official statements from President Trump and other executive branch officials, along with the Proclamation itself, we conclude that the Proclamation is unconstitutionally tainted with animus toward Islam.

The majority opinion is 61 pages, and disposes of the preliminary issue of justiciability, including consideration of injury in fact and ripeness, before turning to the primary question in the appeal: Whether the Maryland district court correctly enjoined the September executive order.

My readers know well that analysis of preliminary injunctions focuses on four factors. The Fourth takes up each of these in turn:

Probability of success

This is the longest section in the opinion, and contains most of the jurisprudential fireworks. The court notes that the travel ban’s challengers have to establish that the Administration’s invocation of national security “is a pretext for an anti-Muslim religious purpose.” Proving that something is pretextual is a big ask, but not here:

In the extraordinary case before us, resolution of that question presents little difficulty. Here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself.

I’m well aware that while the President has a lot of die-hard supporters – his “base” – there are plenty of other conservatives who support his policies but wish he could cut out his troublesome Twitter habit, which often proves embarrassing. Here, that habit comes back to bite the President, as the court cites Trump’s own words to establish his meaning. The opinion cites:

President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

In responding, the government had to show that the travel ban’s primary purpose was secular. Here, the court ventures on a short detour to mention briefly the statements by candidate Trump in 2016:

Perhaps in implicit recognition of the rawness of the religious animus in the President’s pre-election statements, the Government urges us to disregard them. We need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation.

Ah, but there’s a zinger coming:

We need not do so because the President’s inauguration did not herald a new day. Rather, only a week after taking office, President Trump issued EO-1, which banned the entry of citizens of six Muslim majority countries, provided exemptions for Christians, and lacked any asserted evidence indicating a genuine national security purpose. The very next day, January 28, 2017, Rudy Giuliani, an advisor to President Trump, explained that EO-1’s purpose was to discriminate against Muslims.

The court notes that with this context, “every federal judge who considered the matter enjoined EO-1, finding that it likely violated the Constitution.” It didn’t help that in the following months, Trump often referred to the original ban (EO-1) almost wistfully, referring to the following orders as watered down and politically correct.

I hasten to add that many of my readers may agree that these successive efforts to craft a constitutional policy really were bows to political correctness. I won’t weigh in on that debate; I’ll just mention that the question here is whether the policy violates the Establishment Clause in doing so. The relevance of this information is in what the court finds it shows about the true purpose behind the policy.

Having found that the plaintiffs are likely to succeed on the merits, the court goes on to find that they’ve made a sufficient showing of irreparable harm. The policy is already in effect, so there’s no question of what the future might hold. As as for that harm:

We further agree with the district court that the individual Plaintiffs whose family members are categorically rendered ineligible for visas have demonstrated a likelihood of irreparable harm. Prolonged and indefinite separation of parents, children, siblings, and partners create not only temporary feelings of anxiety but also lasting strains on the most basic human relationships cultivated through shared time and experience.

The court disposes of the third prong, holding that the balance of equities favors the plaintiffs, especially since the district court’s injunction conforms to SCOTUS’s ruling (137 S.Ct. at 2088) limiting the injunction to persons with “a credible claim of a bona fide relationship with a person or entity in the United States.”

The last prong of the analysis, the public interest, is probably the easiest for the majority. Having held that the policy is unconstitutional, the court rules that “it cannot be in the public interest for the President to violate the Establishment Clause.” Continuing, the opinion points out, “On a fundamental level, the Proclamation second-guesses our nation’s dedication to religious freedom and tolerance.”

The affirmance notes that the injunction excludes the two non-Muslim nations, North Korea and Venezuela. Since the court’s merits analysis is limited to the Establishment Clause claim, based on an anti-Muslim animus, its appropriate to exclude those. Finally, the court stays the injunction pending resolution of the issue by the Supreme Court.

While there are several concurring opinions, let’s turn immediately to the primary dissent. Judge Niemeyer (joined by two other dissenters) begins with the premise that immigration policy is the president’s job, and the courts need to keep their noses out of it. Here’s his summary:

The opinions of the district court and those supporting the majority’s judgment are demonstrably wrong in virtually every material respect. They fail to recognize and address more than a century of jurisprudence explaining the deference federal courts owe to the political branches with respect to decisions to grant or deny foreign nationals entry into this country; they ignore and again fail to address the plain language of the Administrative Procedure Act on which the plaintiffs rely to allege a cause of action that it does not provide; they misconstrue the INA, effectively rewriting it to accord with their own policy choices and then concluding that the President violated the statute as so revised; they apply a novel legal rule that provides for the use of campaign-trail statements to recast later official acts of the President; and they utterly subvert longstanding Supreme Court precedents on the Establishment Clause.

Other than that, the majority opinion is just fine.

Okay, I’ll remove my tongue from my cheek. Judge Niemeyer begins the substantive part of his opinion with a section entitled, “Threshold Barriers,” and that gives you an idea of how he views this legal challenge. He first renews the contention that the Separation of Powers Doctrine consigns immigration policy to the Executive Branch, not the Judicial. The exclusion of a given individual from the country is generally nonreviewable, and the dissent perceives that this is just such a judicial review.

The district court had dealt with this objection by saying that it wasn’t reviewing individual decisions but a nationwide policy, against the backdrop of the Establishment Clause. That court then found that the government’s stated reason for the policy wasn’t bona fide, so it was fair game for judicial scrutiny. Wrong approach, the dissent maintains, pointing to language in caselaw that says that the government’s justification must only be “facially legitimate and bona fide” in order to prevent judicial review. On its face, Judge Niemeyer argues, there is at least a facially bona fide, non-discriminatory reason for this policy: legitimate national security concerns about terrorism.

The dissent perceives that the inquiry over a bona fide justification must be resolved by looking only at the four corners of the policy itself; not to extraneous information: “a lack of good faith must appear on the face of the government’s action, not from looking behind it.” (Emphasis in original) It’s here that Judge Niemeyer chides the majority for relying on campaign statements – though he does add that it’s also based on “later statements and tweets” – to seek to prove that the policy is a sham.

The dissent next tackles the topic of standing, maintaining that the Administrative Procedure Act doesn’t give courts the ability to review agency actions where other statutes or laws forbid such review. It then turns to the merits of the plaintiffs’ claims that the travel ban violated the Immigration and Naturalization Act – a statutory claim that didn’t figure in the majority’s ruling, based exclusively on the Establishment Clause.

In an unusual turn, Judge Gregory had addressed the INA issues in a concurring opinion – technically, concurring with his own majority opinion. But he couldn’t cobble together six other votes to make that section part of the formal opinion of the court; only Judge Wynn signs on to this section.

Finally, 260 pages into our long stroll through this dispute, the dissent reaches the Establishment Clause. Judge Niemeyer finds three flaws with the majority’s ruling here:

First, as already explained, it misconstrued and misapplied the holding of Mandel to look behind the text of the Proclamation; second, in looking behind the text, it created and applied a new and unprecedented rule embracing a scope of relevant evidence that is both dangerous and unworkable; and third, its Establishment Clause analysis stretched the Supreme Court’s holdings in this area far beyond their intended scope.

Of these, the one I found most interesting is the second. Here the dissent cites the famous case of Hamdi v. Rumsfeld from 2006 for the premise that the courts don’t defer to comments by public officials to the media when interpreting those officials’ actions. Basically, comments to the media are unreliable policy indicators.

Judge Niemeyer’s explanation calls to mind the fact that people on opposite sides of a given issue can both usually find support from biblical quotations:

Because of their nature, campaign statements and other similar statements, including tweets, are 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 susceptible to multiple interpretations, depending on the outlook of the recipient. A court applying this new rule would thus have free reign to select whichever expression of an official’s developing ideas best supports its desired conclusion.

This, you can understand, makes citation of campaign statements troublesome. But back to the majority: Judge Gregory, as I note above, explained that the president’s post-inaugural statements and tweets echoed his earlier pronouncements. The majority also points to a statement by the White House Press Secretary that the president’s statements and tweets are official government communications.

Judge Niemeyer isn’t done on this point. He notes that there’s no logical limit to how far back a court can look. Statements made back in college? And after making his campaign statements, Trump did something that only 43 other humans have ever done: He took an oath to “preserve, protect, and defend the Constitution” as President. That intervening act should make a difference, Judge Niemeyer believes, making pre-inauguration statements fundamentally different from those made on the campaign trail.

Judge Niemeyer sees the majority’s approach as an implicit threat to the courts’ legitimacy:

[P]ublic respect for Article III courts calls for heightened discipline and sharpened focus on only the applicable legal principles to avoid substituting judicial judgment for that of elected representatives. It appears that the temptation may have blinded some Article III courts, including the district court and perhaps the majority of this court, to these obligations, risking erosion of the public’s trust and respect, as well as our long-established constitutional structure.

As I noted above, there are several concurring and dissenting opinions today; there are eight separate submissions, including the majority and the main dissent. Judge Traxler, for example, believes that the plaintiffs don’t have standing to raise statutory claims, and so he would not reach the merits of those. He voted last year with most of today’s majority, ruling that a district court properly enjoined EO-1 and EO-2. He votes with the dissent this time, finding that the September order appropriately addresses the Fourth’s previous concerns.

Judge Agee also dissents more broadly on standing ground. He believes that the plaintiffs don’t have standing even to raise an Establishment Clause claim. Judges Niemeyer and Shedd sign on to this view.

On the other side of the fence, Judge Wynn believes that the constitutional grounds for the majority’s ruling are insufficient. He would go on to rule that the travel ban violated federal statutory law. Judge Harris disagrees; joined by Judges Motz and King, she feels it’s best to leave the statutory claims for another day. Judge Keenan, joined at least in part by three other judges, would uphold the injunction on both constitutional and statutory grounds.

This set of opinions is quite a collective opus. In practical terms, it may not have much short-term impact, because the court stayed its ruling immediately. SCOTUS will take up related issues in its current review of a Ninth Circuit decision. That case comes to the Supreme Court only on statutory grounds; this case presents the justices with the constitutional angle. The appeal from the Ninth Circuit will probably be argued in April, with a decision coming by the end of June. There is zero chance that this case will be ready for a merits argument by then, so it remains to be seen whether the Robes will tackle the constitutional approach this year.