The 4th Circuit Court of Appeals kept the blockade of President Trump’s travel ban in place on Thursday.
“Congress granted the president broad power to deny entry to aliens, but that power is not absolute,” the court based in Richmond, Va., wrote in its opinion. “It cannot go unchecked when, as here, the president wields it through executive edict that stands to cause irreparable harm to individuals across this nation. Therefore … we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged executive order.”
In explaining its 10-3 decision to keep the blockade of the ban, the federal appeals court said a provision of the new order “likely violates the Establishment Clause.”
Trump’s revised executive order bans citizens of six Muslim-majority countries — Iran, Libya, Somalia, Syria, Sudan and Yemen — from entering the U.S. for 90 days. A district court judge in Maryland blocked the provision of the new order that applies to foreign citizens from those six countries, and the government appealed the decision to the 4th Circuit Court of Appeals. Trump’s earlier executive order already had been blocked by the courts.
“We find that the district court did not abuse its discretion in concluding that a nationwide injunction was ‘necessary to provide complete relief,'” the court wrote. “In light of the Supreme Court’s clear warning that such relief should be ordered only in the rarest of circumstances we find that the district court erred in issuing an injunction against the president himself. We therefore lift the injunction as to the president only. The court’s preliminary injunction shall otherwise remain fully intact.”
The 4th Circuit’s opinion also noted that its conclusion does not “in any way suggest” that Trump’s action is unreviewable.
During oral arguments May 8, the American Civil Liberties Union argued that Trump’s revised ban should be ruled unconstitutional because of Trump’s anti-Muslim comments while on the campaign trail and after the election.
Three Republican-appointed judges, Paul Niemeyer, Dennis Shedd and G. Steven Agee, dissented and blasted the lower court’s ruling.
“The shortcomings inherent in the district court’s fact-finding are obvious,” the three judges wrote. “It is primarily based on the district court’s selectively negative interpretation of political campaign statements made before the president swore his oath of office, its acceptance of the national security assessment of former government officials (many of whom openly oppose this president), its failure to account for the national security assessment of the current attorney general and secretary of Homeland Security, its misplaced conclusion regarding the president’s decision not to submit the executive order to the executive bureaucracy for ‘inter-agency review,’ and the purported novelty of the temporary travel pause.
“Moreover, despite its express recognition of the dangers posed by the designated countries and the national security interests served by the temporary travel pause, the district court — with no access to intelligence information — criticized the president for failing to identify any instances of individuals who came from the designated countries having engaged in terrorist activity in the United States, faulted the president for not explaining why the temporary travel pause is the necessary response to the existing risks, and ultimately found that the president failed to prove that national security cannot be maintained without the temporary travel pause. As if all of this is not enough, the president’s supposed goal of ‘banning Muslims’ from the United States is not remotely served by the temporary travel pause, a fact that makes the district court’s factual finding even more dubious.”
Separate litigation regarding Trump’s travel ban is pending before the 9th Circuit Court of Appeals on the West Coast. Challenges to the federal appeals court rulings are expected and look likely to end up at the Supreme Court.
