In a ruling that is going to be tested, and soon, in the Supreme Court, a federal appeals court in Richmond, VA, on Thursday barred the Trump Administration from enforcing the President’s revised curb on immigration of foreign nationals from six Muslim-majority nations.
That order, the majority said, “drips with religious intolerance, animus and discrimination,” and probably will ultimately be struck down as an unconstitutional form of religious bias, against Muslims. It banned enforcement nationwide of a 90-day suspension of entry of any people from the designated Mideast countries.
Attorney General Jeff Sessions promptly announced a plan to appeal to the Supreme Court.
The vote in the U.S. Court of Appeals for the Fourth Circuit was 10 to 3, with all ten judges in the majority agreeing with most of the key points, for varying reasons. The main opinion, though, had the unqualified support of seven judges – a clear majority of the 13 who sat in the case.
This was the first ruling by an appeals court on the revised version of the Trump executive order. Two trial level judges have issued orders forbidding enforcement.
The original version of the executive order had been blocked by a different federal appeals court earlier this year. That other court, the U.S. Court of Appeals for the Ninth Circuit, is currently weighing a decision on more of the Trump order than was at issue in the Fourth Circuit case. The Ninth Circuit Court will also be dealing with a 120-day suspension of entry of refugees from any nation around the globe.
Thursday’s decision came at the final step that the government could take in the Fourth Circuit Court, putting the case before all eligible judges (sitting en banc). That leaves only the Supreme Court for the government to stage a defense of the Trump order, at least as it applies to the six Mideast nations restriction.
The Administration’s first move before the Justices is going to be a request to put the Fourth Circuit Court decision on hold, to allow enforcement of the immigration restriction at issue while an appeal goes forward. The Circuit Court refused on Thursday a government request to postpone the ruling during such an appeal.
A federal judge in Greenbelt, MD, had issued a nationwide order against enforcing the 90-day suspension, finding it likely to fail as a form of anti-Muslim bias. The appeals court upheld the constitutional part of that judge’s ruling, but it decided that the order will not apply directly to President Trump personally. Still, he cannot enforce it alone, and all of his aides are covered by the nationwide order.
It will take the votes of five of the nine Justices to postpone the appeals court’s order so that enforcement could begin. It would take the votes of only four of the Justices to grant full review. The administration almost certainly will move very quickly to seek a delay, but also probably will act with dispatch in pursuing the appeal itself.
The Justices are scheduled to finish their current term in late June. There would be sufficient time for them to act on a delay request. If they opt to allow enforcement, then review of the Fourth Circuit Court’s ruling on the legality of the 90-day suspension need not be decided so quickly. If the administration is denied a delay, the Justices might be asked to extend their current term into the summer to take on the merits of the revised order.
The Ninth Circuit Court case is a bit behind the one in the Fourth Circuit Court, and conceivably could be slowed even further. The coming decision will be by a three-judge panel, and the loser before the panel would have the option of seeking en banc review. With the Fourth Circuit Court already before the Supreme Court, the losing side in the coming panel decision would be more likely to try to move the case swiftly to the Justices.
The Fourth Circuit Court’s opinion, written by Chief Judge Roger L. Gregory, relied primarily upon the Constitution’s ban on favoring or disfavoring one religion – here, the Muslim faith, the belief system of the majority of the populations in the six nations covered by the immigration suspension: Iran, Libya, Somalia, Sudan, Syria and Yemen. Judge Gregory’s opinion did not rule on the challengers’ claim that the revised order was likely to be struck down as a violation of federal immigration law as it deals with the power of the president to exclude foreign nationals from the United States. Because the trial judge had blocked the order only on the basis of the religious bias finding, the chief judge wrote, that made it unnecessary for the appeals court to decide the immigration law question.
The main opinion relied, as the challengers had, on anti-Muslim statements that President Trump had made, both as a candidate and after taking office formally on January 20. The opinion also relied on such statements by Trump associates or aides.
The Gregory opinion had the full support of Circuit Judges Albert Diaz, Henry F. Floyd, Pamela A. Harris, Robert D. King, Diana Gribbon Motz and James A. Wynn, Jr.
Judge Wynn, while signing onto the Gregory opinion, wrote a lengthy separate opinion saying he would also have ruled that the president acted illegally under federal immigration law.
Circuit Judge William B. Traxler, Jr., wrote a short separate opinion saying he supported the result, but not the main opinion’s reasoning. His sole reason for blocking the suspension would have been the religious bias claim.
Circuit Judge Barbara Milano Keenan, while supporting the ruling blocking enforcement under the religious bias argument, wrote separately to say she rejected one of challengers’ arguments under one section immigration law, but that she would have ruled in their favor on another section.
Circuit Judge Stephanie D. Thacker supported part of Judge Keenan’s separate opinion as it dealt with immigration laws, but wrote for herself to say that she would not have relied upon any statements that Trump or others had made about Muslims before the president formally took office. She added that she would have taken into account such comments after inauguration day.
Each of the three dissenters wrote an opinion, and each of those opinions was joined by the two others.
Circuit Judge Paul V. Niemeyer, the longest-serving judge among the 13 who took part, wrote the main dissenting opinion, using strong language to condemn key parts of the trial judge’s ruling. He said that judge had “radically” extended the protection under the First Amendment religion clause. He also objected to the use of political campaign statements as a part of a legal case, and he protested that the judge had failed to give proper deference to presidential power.
Circuit Judge Dennis W. Shedd’s dissenting opinion objected to several parts of the trial judge’s ruling, but said its main failing as he saw it was that it did not take adequate account of the nation’s interest in protecting the national security from current threats.
Circuit Judge G. Steven Agee, in his dissenting opinion, argued that the six individuals who had sued to challenge the Trump order had not shown that they had the legal right to sue, because, he said, they could not show they had been injured by it.
In a court of appeals, as in other courts, a majority vote it all that is necessary to reach the final decision. That is also true when an appeals court takes the unusual step of assembling all eligible judges to sit en banc – a seldom-used procedure that is reserved for the most important cases.
(NOTE: This post also appeared today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)