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Fourth Circuit upholds preliminary injunction of third Trump travel ban
Fourth Circuit upholds preliminary injunction of third Trump travel ban

The Fourth Circuit Court of Appeals [official website] on Thursday upheld [opinion, PDF] a lower court’s preliminary injunction [JURIST report] preventing enforcement of US President Donald Trump’s most recent travel ban [JURIST news archive].

The appellate court concluded, based on “official statements from President Trump and other executive branch officials, along with the Proclamation itself, … that the Proclamation is unconstitutionally tainted with animus toward Islam.” Notably, the court focused on statements made after Trump’s inauguration, finding that “we need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation.” The court rejected the government’s argument that these post-election statements, including characterizing the second travel ban as ‘“a watered down version of the first order,” relaying an “apocryphal story” about using bullets dipped in pig’s blood to punish Muslim combatants in the Philippines and sharing anti-Muslim videos on twitter, “do not reflect any religious animus” but instead evidence “the compelling secular goal of protecting national security from an amply-documented present threat.”

[A]n objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation—to exclude Muslims from the United States. In fact, it is hard to imagine how an objective observer could come to any other conclusion when the President’s own deputy press secretary made this connection express: he explained that President Trump tweets extremist anti-Muslim videos as part of his broader concerns about “security,” which he has “addressed . . . with . . . the proclamation.”

Nor did the addition of non-Muslim-majority countries in the third version [JURIST report] of the travel ban convince the court that no religious animus was at play.

Here, a reasonable observer could hardly “swallow the claim” that the addition of North Korea and Venezuela to the twice-enjoined travel ban was anything more than an attempt to “cast off” the “unmistakable” religious objective of the earlier executive orders.

Having concluded that the Proclamation was based on religious animus, the Fourth Circuit upheld the lower court’s order enjoining enforcement of the ban under the Establishment Clause of the First Amendment [text].

In December, the Ninth Circuit Court of Appeals [official website] also upheld [JURIST report] an injunction of the Proclamation issued in October [JURIST report] by the Hawai’i District Court. However, the Hawai’i and Ninth Circuit opinions do not directly address the Establishment Clause claims raised by the plaintiffs in that case.