Update | US appeals court scathingly rejects Trump’s revised travel ban, saying it ‘drips with intolerance’
US President Donald Trump’s revised travel ban “drips with religious intolerance, animus and discrimination”, a federal appeals court said Thursday as it ruled against the ban that targets six Muslim-majority countries.
The 4th US Circuit Court of Appeals upheld a lower court ruling that blocks the Republican’s administration from temporarily suspending new visas for people from Iran, Libya, Somalia, Sudan, Syria and Yemen.
The Richmond, Virginia-based 4th Circuit is the first appeals court to rule on the revised travel ban, which Trump’s administration had hoped would avoid the legal problems that the first version encountered.
In all, ten of the thirteen judges who heard the case voted against the Trump administration.
Attorney General Jeff Sessions said the Justice Department will take the appeals court ruling to the Supreme Court, defending the president’s executive order as being “well within his lawful authority to keep the nation safe.”
“This Department of Justice will continue to vigorously defend the power and duty of the Executive Branch to protect the people of this country from danger, and will seek review of this case in the United States Supreme Court,” he said in a statement.
A central question in the case was whether courts should consider Trump’s past statements about wanting to bar Muslims from entering the country as evidence that the policy was primarily motivated by the religion.
Trump’s administration argued the court should not look beyond the text of the executive order, which doesn’t mention religion. The countries were not chosen because they are predominantly Muslim but because they present terrorism risks, the administration said.
Trump’s order “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination,” Gregory wrote. He said the order conflicts with the First Amendment’s ban on “laws respecting an establishment of religion.”
“Congress granted the president broad power to deny entry to aliens, but that power is not absolute,” Gregory wrote. “It cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”
The first travel ban in January triggered chaos and protests across the country as travellers were stopped from boarding international flights and detained at airports for hours. Trump tweaked the order after the 9th US Circuit Court of Appeals refused to reinstate the ban.
The new version made it clear the 90-day ban covering those six countries doesn’t apply to those who already have valid visas. It got rid of language that would give priority to religious minorities and removed Iraq from the list of banned countries.
Critics said the changes don’t erase the legal problems with the ban.
Much of Gregory’s opinion recited statements from candidate Trump, including his call for a “Muslim ban,” and comments since his election that blamed Muslims for the threat of terrorism.
Those “statements, taken together, provide direct, specific evidence of what motivated” the travel order, Gregory wrote: “President Trump’s desire to exclude Muslims from the United States.”
That impermissible motivation tainted both the original version of the order, which Trump issued during his first week in office, and a revised version issued in early March, the court said.
The three dissenters faulted the majority for ignoring Supreme Court rulings that called for deference to presidential authority over immigration.
Judge Paul Niemeyer, an appointee of President George H.W. Bush, also derided the majority for “fabricating a new proposition of law” that allows judges to use campaign statements to decide on the president’s actions in office.
“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 wrote.
The Maryland case was brought by the American Civil Liberties Union and the National Immigration Law Centre on behalf of organisations as well as people who live in the US and fear the executive order will prevent them from being reunited with family members from the banned countries.
“President Trump’s Muslim ban violates the Constitution, as this decision strongly reaffirms,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, who argued the case. “The Constitution’s prohibition on actions disfavouring or condemning any religion is a fundamental protection for all of us, and we can all be glad that the court today rejected the government’s request to set that principle aside.”
Additional reporting by Tribune News Service and Kyodo