A second federal appeals court has ruled against President Donald Trump’s latest travel ban executive order, but the decision has already been overtaken by action at the Supreme Court.
The Richmond-based 4th Circuit Court of Appeals ruled, 9-4, that the Trump directive limiting visitors from six majority-Muslim countries and two other nations is likely unconstitutional because it was driven by anti-Muslim animus.
The judges split fell largely along party lines and divided the court in nearly the same fashion as the decision the same judges issued, 10-3, last May against an earlier version of Trump’s travel restrictions.
"Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act on religious animosity," the court’s majority held in an opinion from Chief Judge Roger Gregory, who was initially nominated and recess appointed by President Bill Clinton and later renominated by President George W. Bush.
In the 285 pages of opinions from various judges, Judge Paul Niemeyer decried the court’s decision as an intrusion on executive branch decision-making related to national security.
"This case involves an Article III court’s bold effort to second-guess U.S. foreign policy and, in particular, the President’s discretionary decisions on immigration, implicating matters of national security. Our constitutional structure forbids such intrusion by the judiciary," wrote Niemeyer, an appointee of President George H.W. Bush.
The only 4th Circuit judge to change his stance from last May was William Traxler Jr., a Clinton appointee who often votes with the court’s conservatives. He said the additional work Trump administration officials did to justify the most recent version of the travel ban saved it from the fate of the earlier version.
"Although the factors that drove my prior decision are still relevant, I must now view them in the context of the investigation and analysis that agencies acting on the President’s behalf have completed, the consultation that has taken place between the President and his advisors, and the logical conclusions and rationale for the Proclamation that are documented therein," Traxler wrote. "In light of the extreme deference that courts must always give the President in matters of foreign policy and national security, as well as the additional information before the court, I believe the balance of the equities no longer favors the plaintiffs."
Last October, the Supreme Court voted, 7-2, to allow Trump’s latest order to take full effect despite a partial injunction against it. The justices agreed in January to hear the case this term. It’s expected to be argued in April, but the argument has not yet been scheduled.