Another federal court raised doubts about the legality of President Donald Trump’s most recent attempt to restrict travel to America from six mostly Muslim countries.
The U.S. appeals court in Richmond, Virginia, said Thursday that Trump’s edict was probably unconstitutional in a ruling it immediately put on hold pending Supreme Court review. The high court has already agreed to consider the administration’s appeal of a related ruling by a San Francisco-based court, and in December allowed the travel ban to take full effect.
Trump has tried three times to enact travel restrictions. His current version bars or limits entry by people from Chad, Iran, Libya, Somalia, Syria and Yemen, and also blocks people from North Korea and a handful of Venezuelan government officials, though those aspects of the policy aren’t at issue in the cases.
Thirteen judges heard the Richmond case led by two refugee resettlement groups on Dec. 8. Nine of them agreed that the plaintiffs were likely to prevail on their claim that the ban disfavors Muslims, violating religious protections in the U.S. Constitution.
“Nothing is more important to the president and the attorney general than the safety and security of all Americans,” Justice Department spokeswoman Kerri Kupec said, adding that the ruling “does not alter the status quo.”
Chief Judge Roger Gregory, provisionally appointed to the bench by Democrat Bill Clinton and then permanently by Republican George W. Bush, wrote the controlling opinion, one of eight the judges issued. He noted that Trump’s prior bans faltered because remarks by the president and his surrogates betrayed an animus towards Muslim, and said the present ban would fare no better.
“President Trump continued to disparage Muslims and the Islamic faith” even after the Richmond court’s May ruling striking down the second ban, Gregory said.
Gregory cited Trump’s Aug. 17, 2017, tweet recounting an apocryphal story about U.S. General John Pershing killing Filipino Muslims with bullets dipped in pigs’ blood as a warning to others of that faith. He recognized differences between Trump’s Sept. 24 order and its predecessors — notably the addition of Venezuela and North Korea — but said a reasonable observer “could hardly ‘swallow the claim’” that their addition was anything more than an attempt to cast off the unmistakable objective of the prior orders.
Four judges dissented, calling the decision “demonstrably wrong in virtually every material respect.”
The ruling enables a court to strike down any executive action with which it disagrees, U.S. Circuit Court Judge Paul Niemeyer wrote. “It need only find one statement that contradicts the official reasons given for the subsequent executive action and thereby pronounce that the official reasons were a pretext.”
Cecillia Wang, the deputy legal director for the American Civil Liberties Union, said the group “will continue this litigation until the Muslim ban is ended once and for all.”
The case is International Refugee Assistance Project v. Trump, 17-2231, U.S. Court of Appeals, Fourth Circuit (Richmond).
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