Federal courts continue to deliver legal blows to President Donald Trump’s ‘Muslim Ban.’ After two federal judges in Hawai’i and Maryland blocked the implementation of Trump’s second attempt at the executive order in March, the government appealed. In May, two appeals courts heard oral arguments in the cases of International Refugee Assistance Project v. Trump and Hawai’i v. Trump.
The appellate hearings revolved around similar issues. The judges inquired about the scope of harm endured by those challenging the bans, which included people with family members in the barred countries who sought visas to travel, states that claimed their public universities were losing talent and funds as a result of the bans, and nonprofit organizations with refugee clients. The judges sought to determine if the executive order discriminated against Muslims, if the executive branch had a national security justification for issuing it, and if it matters that statements made by Trump and his advisors signify anti-Muslim hostility.
Today (May 25), the United States Court of Appeals for the Fourth Circuit issued its decision. The court found that Trump’s executive order is unconstitutional because it violates the Establishment Clause of the United States Constitution by disfavoring a particular religion. The court found evidence of anti-Muslim bias in the statements made by Trump and his advisors during the campaign and after the election. From the decision:
We need not probe anyone’s heart of hearts to discover the purpose of EO-2 [executive order 2], for President Trump and his aides have explained it on numerous occasions and in no uncertain terms…. EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.
The court also made it clear that the government cannot simply rely upon a "rote invocation of harm to national security interests as the silver bullet" to defeat other claims and injuries: "National security may be the most compelling of government interests, but this does not mean it will always tip the balance of the equities in favor of the government."
The court rejected the government’s argument that consideration of campaign statements could chill political debate in the future. It noted, "to the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint."
Advocates hailed the decision as a victory for constitutional and human rights. Karen Tumlin, legal director of the National Immigration Law Center, said in a statement:
The Fourth Circuit’s decision today is yet another resounding indictment and rejection of the Trump administration’s Muslim and refugee ban. While the administration has tried to justify its ban under an unfounded and unclear cloak of national security, the courts continue to call it out for what it is: religious intolerance, racial animus and discrimination.
The Ninth Circuit is expected to announce its decision soon. For the time being, the executive order remains blocked.