Shoba’s Favorite Quotes from the Fourth Circuit Ruling Against Muslim Ban

On May 25, 2017, the Fourth Circuit Court of Appeals issued a ruling in the case International Refugee Assistance Project v. Trump upholding a lower court’s decision to block Section 2(c) of the reviewed Executive Order pertaining to a travel ban, suspending entry into the United States for nationals of six countries with Muslim populations of more than ninety percent. The decision runs 205 pages. What follows are my favorite quotes from the majority decision (12–79). This is the first decision by a court of appeals regarding the revised travel ban and applies nationwide.

More information and analyses about this Executive Order and litigation can be found here.

The question for the Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared…remains “a law for rulers and people, equally in war and peace.” And if so, whether it protects the Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus.

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 the nation.

The prolonged separation is not, as the Government asserts, a remote or speculative possibility. Unlike threatened injuries that rest on hypothetical actions a plaintiff may take “some day,” …the threatened injury here is imminent, sufficiently “real” and concrete.

The Government attempts to undercut these injuries in several ways. It first frames Plaintiffs’ injuries as “stress.” That minimizes the psychological harm that flows from confronting official action preferring or disfavoring a particular religion and, in any event, does not account for the impact on families.

More fundamentally, the doctrine of consular nonreviewability does not bar judicial review of constitutional claims …the Supreme Court has affirmed time and time again that “it is emphatically the province and duty of the judicial department to say what the law is.”

…[T]he political branches power over immigration is not tantamount to a constitutional blank check, and that vigorous judicial review is required when an immigration action’s constitutionality is in question.

Mandel therefore clearly sets a high bar for plaintiffs seeking judicial review of a constitutional challenge to an immigration action. But although Mandel’s “facially legitimate and bona fide” test affords significant deference to the political branches’ decisions in this area, it does not completely insulate those decisions from any meaningful review.

Based on this evidence, we find that Plaintiffs have more than plausibly alleged that EO-2's stated national security interest was provided in bad faith, as a pretext for its religious purpose. And having concluded that the “facially legitimate” reason proffered by the government is not “bona fide” we no longer defer to that reason and instead may “look behind” EO-2.

The constitutional limitation in this case is the Establishment Clause, and this Court’s duty to uphold the Constitution even in the context of a presidential immigration action counsels in favor of applying our standard constitutional tool.

These statements [by the President], taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly.

The Government’s argument that EO-2’s primary purpose is related to national security …is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, J.A. 397, and that those agencies only offered a national security rationale after EO-1 was enjoined.

According to former National Security Officials, Section 2(c) serves “no legitimate national security purpose,” given that “not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years” and that there is no evidence of any new security risks emanating from these countries.

We recognize that in many cases, campaign statements may not reveal all that much about a government actor’s purpose. But we decline to impose a bright-line rule against considering campaign statements, because as with any evidence, we must make an individualized determination as to a statement’s relevancy and probative value in light of all the circumstances. The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action.

We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” (quoting Jonathan Swift, Polite Conversation)

The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers. We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.

We are likewise unmoved by the Government’s rote invocation of harm to 
“national security interests” as the silver bullet that defeats all other asserted injuries. [citations omitted] (“Th[e] concept of ‘national defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this Nation apart. . . . [O]ur country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”)