Fourth Circuit Strikes Down President Trump’s Muslim Ban 2.0

This afternoon, the Fourth Circuit Court of Appeals, which sits in Richmond, VA, just held that President Trump’s second travel ban Executive Order (which superseded his first one) is unconstitutional under the Establishment Clause.

Key quote:

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. EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.

And thus we see confirmation of my long-running thesis that the First Amendment’s Establishment Clause (even more so than the Free Exercise Clause) is one of the greatest protectors of religious freedom the world has ever seen.

The LDS Church issued a statement condemning the Muslim Ban when President Trump first proposed it, and Mormon Historians in one of the cases filed an amicus brief drawing parallels to the history of Mormon immigration discrimination.  I hope to see widespread celebration today.

A separate case is pending before the Ninth Circuit (the court Donald Trump has ragetweeted at) which arises from the Hawaii order Jeff Sessions blasted.  That case should be decided soon.  The Ninth Circuit previously enjoined version 1.0 in February.


  1. john willis says:

    One of the judges on the ninth circuit panel ,Richard Paez is L.D.S. and a BYU undergraduate.

    We will see if he is influenced by the Mormon Historians brief

  2. Loursat says:

    Another lesson in this case is the importance of separation of powers and the independence of the judiciary. Judges are increasingly looking like the last guardians of integrity as the Republicans in Congress either kowtow to thugs or become thugs themselves.

    It takes some courage for judges to stand up to Trump on this. The first instinct of the courts when faced with a hot political controversy is to stay off the firing line. In this case, everyone knows that the executive orders are a religious ban. The only question is whether judges will have the courage to say so. They have to be willing to recognize this as the type of case that cries out for the judicial branch to use some political capital and take a risk by making a bit of new law.

    What’s discouraging about the Fourth Circuit ruling is that the three dissenting judges are all Republican appointees, while the ten judges in the majority are all Democratic appointees. It’s still really hard to find Republicans in positions of power who will take a meaningful stand against the thugs.

  3. Have you written elsewhere on the establishment clause? It does seem very important and insufficiently celebrated.

  4. These rulings are plain examples of judicial activism. Solely base of personal/political considerations, rather that existing law. It is not surprising that democrats are celebrating leftist courts that ignore law to advance the progressive agenda.

    Conservative jurists rule according to what the law says, not what they wish the law said.

  5. Jason K. says:

    Thanks, Carolyn. I’ll celebrate with you!

  6. Mark L, I understand that there are arguments on both sides, but best I can tell the common “judicial activism” complaint belongs on the other side in this case. In other words, the results-oriented or politically-decided decision–of the sort that is often criticized–would be a decision that the Executive Order can go ahead. Courts doing their job is not the same as courts allowing the Executive Branch to do whatever it wants.

  7. Carolyn says:

    @christian — I suppose I shouldn’t expect everyone to remember my guest post on the Establishment Clause from last year!

  8. That was a good post, Carolyn. (This one is too).

  9. Not a Cougar says:

    While I wasn’t in favor of the ban (PLEASE NOTE THIS CAVEAT!), I can’t help being surprised that the Court found that the plaintiffs had standing to litigate the ban:

    From SCOTUSBlog – “The court began with an important threshold question: whether the challengers – who have argued that the executive order violates (among other things) the Constitution’s bar against favoring one religion over another – have a legal right to sue at all. They do, the 4th Circuit concluded today, because at least one plaintiff, known as ‘John Doe #1,’ has felt ‘the direct, painful effects’ of the executive order ‘in his everyday life.’ Doe is seeking a visa for his wife, who is currently in Iran; if the order were in effect, the court explained, there would be a ‘real and immediate threat that it would prolong’ Doe’s separation from his wife. And as a Muslim born outside the United States, Doe suffers from ‘feelings of marginalization and exclusion.’ ” While I understand that harm doesn’t always need to be pecuniary, the type of harm the Court described seems hard to quantify and subject to abuse.

    The Court also gave short shrift to the idea that John Doe #1 hadn’t even exhausted administrative remedies that could have resulted in his wife getting a visa.

    I also believe they improperly emphasized Trump’s campaign rhetoric out of proportion to the facts of the actual ban itself. If the administration’s primary goal was to keep Muslims out of the U.S., it was a miserable failure for not including 8 of the 10 countries with the largest number of Muslims. Of course, it also doesn’t include many of the countries where terrorists in the U.S. have originated, with Saudi Arabia and Pakistan coming immediately to mind so it really was a bad executive order all around.

  10. Carolyn, thank you. That was a good post (that I hadn’t seen before so I couldn’t remember!)

    Reading both, I find myself wanting/looking for a convenient non-lawyerly discussion of the establishment clause and arguments. I find that non-expert intuition about Free Exercise is often a reasonable starting point for a discussion, but non-expert intuition about Establishment is too often non-existent or far enough off the mark to make discussion difficult.

  11. Not a Cougar: Sorry in advance for my cynicism, but thus we see that standing doctrine is and has always been not so much a rule of law, but a tool that judges can pick up when they want to avoid ruling on something for any particular reason. It’s inconsistently applied and not hard to overcome. Also, remember that constitutional standing is and should be a very low bar.

  12. Not a Cougar says:

    JKC, I share some of your cynicism, but where the impact falls mainly on non-U.S. citizens living outside the U.S. (the 4th Circuit’s opinion as to the U.S. citizen husband notwithstanding), I would have expected the bar to be a bit higher.

  13. Loursat says:

    I think the best way to understand what’s really going on with the legal doctrine of standing is often by looking at its political underpinnings. The rules of standing—which require a plaintiff to meet certain requirements (such as actually suffering some harm) in order to bring a complaint—are complicated. Because the rules of standing are complicated, they are malleable, and they allow a federal court to exercise discretion over which cases it hears.

    There are many reasons why a court might want to avoid a case. One of the reasons is politics. In a super-hot political case, standing is perhaps the most reliable way for a court to duck political fire. By rejecting a case based on standing, the court can make a ruling using highly technical legal reasons that are virtually impenetrable to lay persons and never touch on the highly charged political controversy; it’s a way for the judges to keep their hands clean.

    This is not to say that the courts always use standing as a dodge. In fact, in most cases where standing is an issue, it’s not a political dodge at all. But that’s because most cases are not political hot potatoes.

    In an honest assessment of this case, there is no way to avoid the politics. The judges have to swallow hard and decide whether to step up. Everyone knows what’s really going on here. Trump said he was going to ban Muslims, and he did it. He tried, clumsily, to create legal cover for himself, but everyone still knows. Judges have to decide whether they will grapple honestly with that fact. It requires them to apply the Establishment Clause in a slightly novel way, and it requires them to nullify an executive action. Those are not inconsequential legal steps, and they require some gumption. But honestly, this kind of case is why we have an independent judiciary. This is why we give our federal judges the power they have.

  14. Loursat says:

    And I don’t think that it’s necessarily cynical to acknowledge the political realities that affect how the courts do their work. The courts are part of our political system, and their work is often unavoidably political. We only become cynical if we fail to demand that the courts face up honestly to their political role. That role is complicated. I don’t think it’s possible to sum up in a nutshell how the courts can be honest about politics. But I think it’s a mistake to consider ourselves cynical whenever we talk about the political aspect of what judges do.

  15. Totally agree, Loursat. But they’re not just complicated, they’re amorphous, ill-defined, inconsistently applied, and, most troublingly, to me, they have over time grown to become in some areas an indefensible obstacle. But this isn’t a legal blog, so I’ll shut up now.

  16. The standing issue here is worth a non-legal discussion (although I’m not sure I can do “non legal.” There is a point of view that says immigration laws and travel bans are all about ‘others’–non-citizens who are not entitled to due process or any other protections of law. In the crass sense: ‘why should we care–they’re not us.” I think true religion says that they are us and we care about them as much as ourselves. (Setting aside the sub-currents that say “the Christian are us, but not . . .” or “the Mormons are us, but not . . .”) However, U.S. law really does treat non-citizens differently, as other, as not entitled to all the protections of law.

    The standing discussion is a “why should we care” discussion, and while “they are us” might be motivating it isn’t legally persuasive. In effect, the courts have to find potential harm to someone the law cares about. If one is of the mind that “they” are really other and we don’t care, then the standing debate looks like a politically charged artifice. If one is of the mind that the us/them distinction is artificial, then the standing debate looks like technical maneuvering to reach the right result.

  17. Carolyn says:

    Standing doctrine is a notorious mess. But the reason the Establishment Clause claims (and NOT the Due Process claims) have been the consistent winners in these Travel Ban cases are because Establishment Clause standing is easier than Due Process or other individual rights standing.

    That probably makes no sense to laypeople. But let me explain the theoretical underpinnings of it. Most of the Bill of Rights is essentially a grant of individual rights coupled with a corresponding duty by the government. So “freedom of speech” means both that I can write this comment, and that the government can’t punish me for it. “Freedom of assembly” means both that I can go to church, and that the government can’t punish me for it. “Due process” means (among other things) that I have the ability to defend myself against and challenge any criminal charges the government accuses me with; and that the government has to provide certain basic procedures for that to happen.

    But the Establishment Clause is –not– an individual right. Nobody has a “right” for the Government to not establish churches, as we understand it to mean today. Theoretically, the people most affected by unconstitutional establishments are the people who BENEFIT (i.e. the government directly gave a church money) — and they’re not going to challenge it. So you have to find someone who is tangentially related to the problem and has enough of an interest that it makes sense for them to bring the challenge (i.e., the neighboring mosque that was not given the same money). Standing is well-recognized as being a weakened standard in Establishment Clause cases because the risk is otherwise that the government gets away with structural abuse.

    In other words, even if the husband doesn’t have the ability to assert a due process / immigration right on behalf of his Iranian wife, he still is affected enough by the ban to assert an Establishment Clause challenge. He’s definitely closer to it than say, me, who is horrifically offended and has a smattering of Middle Eastern friends, but that’s it.

  18. Wilhelm says:

    >Tired: allusions to Harry Potter
    >Wired: allusions to Lord of the Rings

    Legolas: “Aragorn, Saruman’s army is on the horizon. Shall we light the beacons?”
    Woke Aragorn: “No, Legolas. If we submit to xenophobia, Saruman wins.”

    Captain of the Guard: “King Aragorn, should we expel Orcs from our land to stop the attacks?”
    Woke Aragorn: That’s exactly what the ADLS (Army of Dark Lord Sauron) would want.

  19. Wired, Wilhelm. In the end, your rhetoric is tired. And dangerous. But still, that doesn’t mean all Republicans or Conservatives or whatever you might call yourself are as ignorant and un-Christlike as your comment are.

  20. Isn’t it weird how sometimes the real world doesn’t correspond exactly to fantasy novels? (I say this as an obsessively devoted Tolkien fan).

  21. Good point, Carolyn. I had forgotten that.

  22. A small correction to the OP: Our amici curiae brief was filed in the Ninth Circuit case rather than the Fourth Circuit, and as you note, the Ninth Circuit case is pending.

  23. Carolyn says:

    @Ardis: My apologies. I should have double-checked that. Blame me trying to get a post out in 10 minutes? Anyway I’ll correct it in the OP.

  24. As a reluctant Trump supporter, I take heart that Trump will soon fire these judges and overturn their unlawful judgements. Our president doesn’t need to follow the law.

  25. The Supreme Court will put this to rest. It’s entirely constitutional, regardless of the policy wisdom. Much the same was said about Obamacare. Not that these issues are similar, but often we have leaders do things that are outrageous to many of us, but the bar to constitutionality was long ago lower so far that almost anything not explicitly proscribed passes muster.

    The executive is at its strongest when dealing in foreign affairs delegated to it by Congressional acts.

    Long ago the simple answer was that if Congress has a problem, don’t fund it. We don’t like that answer because we want our executive branch to be like a monarch of old. Sometimes the monarch will FYI things you don’t like with the powers you gave him.

  26. From the dissent, “The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds — one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.”

  27. “As a reluctant Trump supporter, I take heart that Trump will soon fire these judges and overturn their unlawful judgements. Our president doesn’t need to follow the law.”

    Mark L, please admit that you are trolling us now and that you actually understand that presidents can’t fire federal judges. Otherwise, we will have to assume that you failed middle school civics and would probably fail a citizenship test. And, for that matter, a Turing test.

  28. Who is the real fascist? The President or the progressives, who refuse to accept the results of the election. The President is not the comic book dictator the dominant, left-wing, establishment, mass-media claim he is.

  29. Loursat says:

    The real fascists are the ones who say things like, “Our president doesn’t need to follow the law.” No comic book dictator could top that one. I also can’t tell whether you’re trolling, Mark L, but thanks for keeping us on our toes. Even if you don’t really mean it, you’ve reminded us that there are some who do.

  30. Mark L, there aren’t many people who are refusing “to accept the results of the election,” though Trump is one of them–constantly complaining about fraud even before he won and even suggesting he wouldn’t accept the results if he lost. You knowledge of what is occurring seems to be like, (if I might guess that you profess a love of the Constitution), like your love of the Constitution–ill-informed, myopic, and dangerous. Lover in name only. Gotta love those who suggest Presidents are above the law. Talk about fascists!

  31. Typed too slow!

  32. Wilhelm says:

    “Father, why is there a giant, all-seeing eye looming over all the land?”
    “Well son, our elders thought it made more sense than an Orc ban”

  33. Wilhelm, your analogies don’t even make sense anymore. I’m seriously questioning your familiarity with LotR

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