Appeals Court Won’t Reinstate Trump’s Refugee Order

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Kevin Daley Supreme Court correspondent
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The 4th U.S. Circuit Court of Appeals upheld a lower court order barring enforcement of a key provision of President Donald Trump’s second executive order on refugees Thursday, dealing another defeat to an administration repeatedly stymied by the courts while pursuing its immigration agenda.

Just hours after the ruling, Attorney General Jeff Sessions announced the Department of Justice will bring the case to the Supreme Court.

As in previous rulings on the subject, the president’s own words proved fatal to the government’s defense of the order. Chief Judge Roger Gregory wrote the opinion for the court, which found that statements made by Trump and his surrogates regarding Islam create the impression that the purpose of the order is to discriminate against Muslims, in violation of the Constitution’s ban on establishing religion.

“These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States,” Gregory wrote. “The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly.”

“We need not probe anyone’s heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms,” he added.

Gregory’s opinion was joined by Judges Diana Gribbon Motz, William Traxler Jr., Robert King, Barbara Milano Keenan, James Wynn, Albert Diaz, Henry Floyd, Stephanie Thacker, and Pamela Harris. All are Democratic appointees.

The court concluded that the national security rationale invoked by the government to justify the order was in fact a pretext to institute the “Muslim ban” trumpeted by the president’s campaign in the closing weeks of 2015. The court said Trump’s campaign rhetoric provides ample evidence for the order’s true purpose, listing quotes from interviews, tweets, and stump speeches, a catalog which increasingly appears common to any ruling on the order.

Having identified the government’s true motives, the panel assessed Trump’s campaign statements using the “reasonable observer test.” The purpose of the test is to determine if a government action leaves the average observer with the perception that government is endorsing or disparaging religion.

“The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious,” Gregory writes. “Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States.”

The ruling did contain something of a victory for the Trump administration. The panel determined that suspending migration from countries with high instances of terror is a valid exercise of presidential power, though emphasized that, in this instance, the national security justification was secondary to its true purpose.

“EO-2’s stated purpose is ‘to protect the Nation from terrorist activities by foreign nationals admitted to the United States.’ We find that this stated national security interest is, on its face, a valid reason for Section 2(c)’s suspension of entry.”

In her concurrence with Wood’s opinion, Judge Stephanie Thacker, a Barack Obama appointee, pointed to remarks made by former New York City Mayor Rudy Giuliani as indicative of the administration’s intent to discriminate against Muslims.

During a Fox News interview in January, the former mayor claimed that Trump had asked him to produce a memo describing a strategy for lawfully enacting a “Muslim ban.” He has since conceded he did not produce a memo for the administration on the subject, or participate in the drafting of the order.

His disclosure raises questions about judicial reliance on his claims.

In dissent, Judge Paul Niemeyer, a George H. W. Bush appointee, argued the court should confine its inquiry to the text of the order.

“Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds,” he wrote. “They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often ambiguous.”

The 4th Circuit’s ruling leaves a provision of the refugee order that temporarily banned citizens of six countries with high instances of terrorism from entering the U.S. under injunction. A decision on another injunction blocking the order is pending from the 9th Circuit.

“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.”

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