Fourth Court of Appeal Declares Trump’s ‘Muslim Ban 3.0’ Unconstitutional
|Abdus Sattar Ghazali – February 16, 2018|
A panel of 13 judges on the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., Thursday (Feb. 15) declared Trump’s Muslim ban (3.0) illegal and unconstitutional.
The appeals court in International Refugee Assistance Project v. Trump stayed its decision pending resolution of a related case that is already at the U.S. Supreme Court. That case, Trump v. Hawaii, will be argued in April.
“When we compromise our values as to some, we shake the foundation as to all,” Chief Judge Roger Gregory said in the majority ruling.
In its ruling against the Trump administration, the court concluded that “the Proclamation [Muslim Ban 3.0] is unconstitutionally tainted with animus toward Islam.”
The court went on to state that the Muslim ban violated the First Amendment’s Establishment Clause because the primary purpose of the ban is “to exclude Muslims from the United States.”
The Fourth Circuit recognized the great harm endured by those affected by the Muslim ban: “Prolonged and indefinite separation of parents, children, siblings, and partners create not only temporary feelings of anxiety but also lasting strains on the most basic human relationships cultivated through shared time and experience.”
“Examining official statements from President Trump and other executive branch officials, along with the Proclamation itself, we conclude that the Proclamation is unconstitutionally tainted with animus toward Islam,” Gregory wrote. He added: “Here the government’s proffered rationale for the Proclamation lies at odds with the statements of the president himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President.”
Five of the nine judges in the majority also found that the challengers would succeed on their claims that the ban violates provisions in federal immigration law.
Chief Judge Roger Gregory wrote: On a human level, the Proclamation’s invisible yet impenetrable barrier denies the possibility of a complete, intact family to tens of thousands of Americans. On an economic level, the Proclamation inhibits the normal flow of information, ideas, resources, and talent between the Designated Countries and our schools, hospitals, and businesses. On a fundamental level, the Proclamation second-guesses our nation’s dedication to religious freedom and tolerance.”
He also said: “The statutory question is this: whether the president has the congressionally delegated authority to enact modern-day analogs of the repealed Chinese Exclusion Act or nationality-based quota system. In light of legislative and executive practice spanning centuries, I conclude that he does not.”
According to Judge Pamela Harris: “This case is remarkable because it features just that: a governmental decision-maker using his own direct communications with the public to broadcast—repeatedly, and throughout the course of this litigation—an anti-Muslim purpose tied specifically to the challenged action.
The record of those statements, and their relation to the Proclamation, is canvassed ably by the majority, and by the district court in its thoughtful opinion, and I will not rehash it here. Suffice to say that this is not a case in which we need indulge in ‘judicial psychoanalysis’ of motive. It is all out in the open.”
Cecillia Wang, the ACLU deputy legal director who argued the case in the Fourth Circuit, said in a statement: “President Trump’s third illegal attempt to denigrate and discriminate against Muslims through an immigration ban has failed in court yet again. It’s no surprise. The Constitution prohibits government actions hostile to a religion.”
Because the U.S. Supreme Court has allowed the administration to implement Muslim Ban 3.0 while the various legal challenges against it unfold, the Fourth Circuit’s decision will not have any immediate effect on the ability of foreign nationals from the banned countries to obtain a U.S. visa.
“The Fourth Circuit’s decision is the latest blow to the Trump administration’s ugly white supremacist agenda,” said Senior Litigation Attorney Gadeir Abbas of the Council on American-Islamic Relations (CAIR).
“We are pleased that another court has recognized the enduring harm that American Muslims are suffering due to discriminatory and unconstitutional policies put forward by the Trump administration,” said CAIR National Executive Director Nihad Awad.
Abdus Sattar Ghazali is the Chief Editor of the Journal of America (www.journalofamerica.net). He is the author of several books including Islam & Muslims in the 21st Century published in 2017.