The executive order that initiated the travel
ban announced January has been blocked by the Federal Courts, most recently by
the Fourth Circuit Court of Appeals (4th Circuit). The 10-3 ruling
from the 4th
Circuit upholds a lower court’s decision to halt core portions of the
executive order indefinitely. As in the prior cases challenging President
Trump’s first travel ban, the president’s own statements became the focus of
the oral arguments.
As a candidate prior to November’s election, President
Trump issued a statement calling for the “total and complete shutdown” of
Muslims entering the United States until the government could “figure out what
is going on,” in response to a deadly mass shooting in San Bernardino, CA, by
ISIS sympathizers in December 2015. This and other related statements preceding
the executive order added to the 4th Circuit’s belief that the
revised travel ban was not about national security and presidential
prerogatives but about an infringement on religious freedom.
Judge Paul Niemeyer, one of the three
dissenters, said the majority “looks past the face” of the executive order and
“adopts a new rule of law that uses campaign statements to recast the plain,
unambiguous, and religiously neutral text.” Judge Niemeyer, a George W. Bush
appointee, continued that “opening the door to the use of campaign statements
to inform the text of later executive orders has no rational limits.” The Trump
administration says it plans to appeal to the Supreme Court.
The 9th United States Circuit
Court of Appeals is also evaluating the travel ban in a separate appeal, State of Hawaii v.
Trump. The court has not indicated when it will rule, but
the travel ban would not go into effect if one nationwide injunction remains in
effect. In a third related
case in Washington, D.C., Pars
Equality Center v. Trump, U.S. District Court Judge Tanya Chutkan said she
was “inclined to agree with plaintiffs that they are likely to succeed on the
merits of their claims,” but she postponed ruling on an injunction, saying that
the case was not timely because the executive order was not being enforced due
to prior injunctions. She did say that, if “both injunctions [in the Ninth and
Fourth Circuits] are overturned, this court is prepared to issue a ruling
If the blocked travel ban reaches the Supreme
Court, Trump appointee Justice Neil Gorsuch will have a hand in the decision.
In the past, Justice Gorsuch has been known to support the use of executive
power in national security situations. Whether he will see the executive order on
its face as dealing with national security is still unknown.