A large crowd rallies on the steps of the U.S. Supreme Court, led by top Democrat lawmakers, to denounce President Donald Trump’s executive order banning immigration from 7 Muslim-majority countries, on January 30, 2017. (Photo: Diego M. Radzinschi/ALM)
Wednesday’s 10-3 opinion out of the Fourth Circuit is 200 pages long, with three concurring opinions and three dissents. Don’t have time to read the whole thing? Here are some of the highlights:
The key question of the case: “The question for this court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it 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.”
This passage from the beginning of the majority opinion by Judge Roger Gregory lays it all out. The court in this case was faced with the question of whether the purpose of Trump’s order is to protect national security interests, or to institute a ban on Muslim immigrants entering the country, and if that violates the Constitution.
On why the court can consider factors besides the order itself: “Based on this evidence, we find that plaintiffs have more than plausibly alleged that EO-2′s stated national security interest was provided in bad faith, as a pretext for its religious purpose. And having concluded that the “facially legitimate” reason proffered by the government is not “bona fide,” we no longer defer to that reason and instead may “look behind” EO-2. Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in the judgment).”
While less straightforward, this is key to the court’s decision. The court looked to a U.S. Supreme Court precedent that said when the executive branch exercises its power to exclude immigrants on the basis of a “facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the [plaintiffs'] First Amendment interests.” The government had argued that because Trump’s order was issued for national security reasons and had no mention of religion in its text, the court couldn’t look at other statements to evaluate it under this standard. Here, the court said that because the order is not “bona fide,” for various reasons, it can consider other factors besides the text of the order.
On using Trump’s campaign statements: “We recognize that in many cases, campaign statements may not reveal all that much about a government actor’s purpose. But we decline to impose a bright-line rule against considering campaign statements, because as with any evidence, we must make an individualized determination as to a statement’s relevancy and probative value in light of all the circumstances. The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decision[ ]maker, and specific and easily connected to the challenged action.”
Trump’s controversial statements about Muslims on the campaign trail are central to this case. The government argued that the court can’t look to what Trump said before he was president as evidence of motive for his presidential actions. In this passage, Gregory explains why the court disagrees.
On the statutory question under the Immigration and Nationality Act: “The text of the second executive order therefore does not identify a basis for concluding that entry of any member of the particular class of aliens, namely, the more than 180 million nationals of the six identified countries, would be detrimental to the interests of the United States. In the absence of any such rationale articulating the risks posed by this class of foreign nationals, the president’s proclamation under Section 2(c) does not comply with the “finding” requirement of the very statute he primarily invokes to issue the ban imposed by section 2(c).”
This passage comes from Judge Barbara Keenan’s concurrence, and “section 2(c)” is the part of Trump’s order that bans immigrants from six majority-Muslim countries. In addition to arguing the ban violates their First Amendment rights, plaintiffs in the case argued that it violates the Immigration and Nationality Act, because of a clause in that law that prohibits discrimination on the basis of nationality in the issuance of visas. The government, however, touted a different provision in the same law, which says the president can suspend the entry of “any class of aliens” if he finds their entry would be “detrimental” to the country’s interests. In this passage, Keenan writes that the government misconstrued the president’s authority. She argues that Trump didn’t do anything to “find” that letting those immigrants into the country would be “detrimental.”
On why the court shouldn’t look at Trump’s statements: “The majority’s new rule, which considers statements made by candidate Trump during the presidential campaign to conclude that the executive order does not mean what it says, is fraught with danger and impracticability. Apart from violating all established rules for construing unambiguous texts — whether statutes, regulations, executive orders, or, indeed, contracts — reliance on campaign statements to impose a new meaning on an unambiguous executive order is completely strange to judicial analysis.”
In his dissent here, Judge Paul Niemeyer explains that the court should not be looking at Trump’s campaign statements. He goes on to cite the Supreme Court’s decision in McCreary County v. ACLU of Kentucky, which warned against “judicial psychoanalysis of a drafter’s heart of hearts.” Niemeyer’s dissent articulates much of the criticism of how courts are handling the travel ban with respect to Trump’s statements.
On national security risks: “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 advisers (and perhaps future 189 presidents) will be seriously hampered in their ability to exercise their constitutional duty to protect this country.”
In his own dissent, Judge Dennis Shedd explains his concern that the courts should not be in the business of examining national security determinations. The government argued that the president has extremely wide authority in the national security arena, as he receives classified information and briefings and is exposed to much more than the general public or federal judges. Shedd, it seems, agrees in this instance.
Cogan Schneier covers litigation in Washington, D.C., for the National Law Journal and Law.com. Contact her at [email protected]. On Twitter: @CoganSchneier.
