In a stinging defeat for the Trump Administration, the United States Court of Appeals for the Fourth Circuit has upheld an injunction on the Trump Administration’s immigration order. The Fourth Circuit is widely viewed as one of the most conservative circuits and has proven the most deferential to national security powers by the Executive Branch. Indeed, the government often openly forum shops in pushing national security cases through the Eastern District of Virginia and ultimately the Fourth Circuit. The 10-3 vote is an impressive victory for the challengers and now sets the case for the long-awaited petition to the Supreme Court. The court did not spare the rhetorical bite, observing that the order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
The oral arguments were held on May 8th and I thought the Justice Department did a much better job than the first round leading to the losses in California. The United States Court of Appeals for the Ninth Circuit will also rule on the second order.
I still believe that the law favors the Trump Administration. However, Trump himself has proven the greatest liability as challengers repeatedly quoted Trump’s anti-Muslim campaign comments and references to a Muslim ban.
However, the response of the Fourth Circuit clearly a bad omen for the Administration. This is not a court that can be dismissed as some cabal of liberals. Ten judges ruled en banc that “We remain unconvinced [the ban] has more to do with national security than it does with effectuating the President’s promised Muslim ban.” Chief Justice Roger L. Gregory added that “Congress granted the president broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”
I am still skeptical about the weight given to campaign statements over the language of the order on its face. I expect a number of justices are likely to have the same reservations. Time will tell but that time is rapidly approaching.
Here is the opinion: Immigration decision