A federal appeals court said on Thursday that President Trump's latest travel ban targeting nationals of six Muslim-majority countries unconstitutionally discriminates against Muslims. He said the latest restrictions were the product of a global, multiagency review that found the specified countries do not share enough security-related information with the U.S. He said the ban is created to protect the nation from terrorism and other threats. From a more practical point of view, the Fourth Circuit's action probably ensures the Supreme Court will consider both statutory and constitutional arguments against the ban.
"The Muslim ban has a devastating impact on USA families waiting to reunite with their family members, foreign students seeking educational opportunities, and others who would otherwise be eligible for visas to travel to the United States", said Mariko Hirose, IRAP's Litigation Director.
The current version affects various travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela.
Thirteen judges heard argument in the Richmond case pressed by two refugee resettlement groups and other people and allied organizations on December 8. The 9th Circuit did not rule on whether the ban had violated the First Amendment by discriminating against Muslims.
"Plaintiffs here do not just plausibly allege with particularity that the Proclamation's objective is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President", Gregory wrote. Based on that investigation, it said, the administration chose to have the ban cover a slightly different list of countries than in the first two versions.
Gregory wrote in the main opinion that even if the proclamation was "facially legitimate" - that the text on its face didn't run afoul of the constitution - it failed the test of whether the government had a "bona fide" reason for adopting it.
In a dissenting opinion, Judge Paul Niemeyer said the 4th Circuit's ruling was an attempt to "second-guess USA foreign policy, in particular, the president's discretionary decisions on immigration, implicating matters of national security". The majority based its conclusion in large measure on statements Trump has made as a candidate and while in office. As it did in striking down an earlier version of the ban, the 4th Circuit's opinion issued Thursday said the ban violated the Constitution's prohibition on religious discrimination.
The ruling was the second time the fourth circuit has rejected a travel ban.
Gregory cited Trump's "disparaging comments and tweets regarding Muslims", the president's repeated references to a Muslim ban, the fact that Trump's previous travel bans were focused on majority-Muslim countries, and statements by Trump and his advisers that the latest order has the same goals as the previous ones.
The latest version blocks travelers from the listed countries to varying degrees, allowing for students from some of the countries, while blocking other business travelers and tourists, and allowing for admissions on a case-by-case basis.