The Trump Muslim Travel Ban: Another Rebuke from the Appellate Courts

by Saeed Khan

In a development hailed by immigration rights and social justice advocates alike, the Fourth Circuit Court of Appeals affirmed a lower court decision that the Trump administration’s second executive order/travel ban was unconstitutional. The restriction often cited as effectively a Muslim ban due to its focus on six Muslim-majority countries (Iran, Libya, Sudan, Somalia, Syria, and Yemen). The revised ban was offered upon failure of the initial ban, one that included Iraq on the prohibited countries list, to survive judicial review in February. It is the latest in a string of defeats for a president who campaigned on a pledge to ban all Muslims from entering the country, a declaration that the courts have cited as evidence of unconstitutional intent.

The Fourth Circuit Court of Appeals is based in Richmond, Virginia, presiding over cases brought on appeal from Maryland, North Carolina, South Carolina, Virginia and West Virginia.  In International Refugee Assistance Project, et al. v Trump, et al., a panel held, 10-3, that the March 2017 revised travel ban was invalid as it unconstitutionally singled out a group of people based upon their religious identity. This was the second such judgment for the same executive order in recent weeks. Affirming a decision made by a federal court in Honolulu, the 9^th Circuit Court of Appeals heard arguments two weeks ago for an appeal filed by the Trump administration. A three-judge panel will consider the legal issues in State of Hawai’i & Ismail El Shikh v Trump and issue its holding in the next few weeks. The same appellate court had struck down the validity of the administration’s’ initial travel ban.

In arriving at its decision, the Fourth Circuit Court of Appeals specifically focused on the rhetoric of Donald Trump when he was campaigning for the presidency, where he called for the “complete and total shutdown of Muslims entering the United States.” The government argued that the ban fell far short of such an objective, a ban that only affected persons from six Muslim majority countries, and that President Trump was somehow a different person than Candidate Trump. It also contended that the president, as head of the executive branch, has broad discretion to act for the sake of national security, including the exclusion of entire groups of people for any rationale he deems appropriate.

The Richmond Court’s decision is significant in four ways. First, this is the second appellate court to have held that a Trump travel ban is unconstitutional. The 9^th Circuit did so in March on the original ban and is expected to follow suit for the revised ban as well. Secondly, the 4^th Circuit has a reputation for being one of the most conservative, if not the most conservative of the federal circuits. Such a judgment would be expected more readily from a more liberal court, say, the 9^th Circuit. For the 4^th Circuit to arrive at this conclusion suggests it was utterly unpersuaded by the government’s argument of national security being an unrestricted rationale to enact measures that would otherwise trample on constitutional rights and principles. Thirdly, the 4th Circuit’s judgment was reached by the entire (en banc) court, not just by a three-judge panel, which is usually the first step at this appellate level. A 10-3 vote, rather than a tight 7-6 holding, is quite decisive as well. Lastly, the language and reasoning behind the Court’s holding is critical. The judges held that Trump’s prior statements on the campaign, as well as those of his campaign representatives like former New York City Mayor Rudy Giuliani, were indicative of the true motivation behind the ban: an anti-Muslim agenda.

While the decision out of Richmond is a major victory, it’s still not the end of the road regarding the travel ban. Attorney General Jeff Sessions has already announced that the administration plans to take the issue to the Supreme Court of the United States (SCOTUS). There is no certainty that the nation’s highest court will accept the case. Each year, the SCOTUS receives approximately 6,000 writs of certiorari, the petition to hear a case on appeal. It accepts around 150 of those for oral argument, a 1 in 40 ratio. The two most common justifications to accept a case for argument before the nine justices are a compelling constitutional question that requires definitive resolution or a decision that reconciles a difference of conclusion reached between or among the various appellate courts. To date, there is no cause based on the latter, as the fourth circuit has decisively rejected the ban’s validity and the ninth circuit is expected to reach the same decision, given its nullification of the first ban. But the court may still choose to hear the case if it feels that the issue of the president’s authority over immigration, especially in the name of national security, extends to restricting groups of people based on their religious affiliation.

The stated objective of the government’s so-called travel ban was to keep the country safe from the potential entry of prospective terrorists. The ban also included refugees from the six countries (and Iraq in the initial ban). If national security was indeed the administration’s main concern, then arguably the ban would include countries from where actual terrorists emanated, such as Saudi Arabia and Egypt, neither of which has been considered for inclusion in such restrictions. There have been no efforts by the administration to seek emergency recourse by the courts under the guise that there is a significant and imminent terrorist threat. Now comes word that the State Department has quietly been expanding the number of refugees allowed to enter the country, seemingly in direct contradiction to the purpose of the very ban the Trump administration seeks.

The Fourth Circuit Decision to “ban the ban” is a welcome and promising development in light of the government’s efforts to single out and target Muslims and their ability to enter the United States. While there are certainly several measures that the administration can take, both with the current travel ban and with potentially new policies in the future, for now, there is cautious optimism that at least one branch of government has built a wall to prevent improper executive branch encroachment on the US Constitution.