In a stinging rebuke to President Donald Trump, a U.S. appeals court refused on Thursday to reinstate his travel ban on people from six Muslim-majority nations, calling it discriminatory and setting the stage for a showdown in the Supreme Court.
The chief judge of the 4th U.S. Circuit Court of Appeals, Roger L. Gregory, wrote in a ruling against the ban that it "speaks with vague words of national security".
"These clearly are very risky times and we need every available tool at our disposal to prevent terrorists from entering the United States and committing acts of bloodshed and violence", he said.
The White House said it disagreed with the ruling.
A Virginia-based federal appeals court pulled no punches in refusing to reinstate President Donald Trump's revised travel ban, with judges in the 10-3 majority calling the administration's action discriminatory and its reasoning nonsensical.
A central question in the case is whether courts should consider Trump's public statements about wanting to bar Muslims from entering the country as evidence that the policy was primarily motivated by the religion.
Gregory's ruling essentially hangs on a familiar, and superficially plausible, argument: that the order is a sanitized version of Trump's notorious proposal in December 2015 for a "total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on".
The issue at hand: whether a lower court acted properly in issuing a nationwide injunction to keep the order from being enforced.
The government had argued that the court should not take into account Trump's comments on the campaign trail since they occurred before he took office on January 20. Hawaii Attorney General Douglas Chin said Monday, May 15, that means even if the 4th and 9th Circuits side with the administration, the travel ban could be put on hold yet again.
"Congress granted the president broad power to deny entry to aliens, but that power is not absolute", Gregory wrote.
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"It can not go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation", he said.
Last week, judges on the 4th Circuit Court of Appeals in Richmond, Virginia, heard arguments over whether to affirm a Maryland judge's decision putting the ban on ice.
But the question for the USA 4th Circuit Court of Appeals wasn't whether the order was good policy but whether it raised serious enough constitutional questions that it should remain unenforced.
"The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that the (Executive Order's) primary goal is religious".
In an opinion that concurred with the majority on Thursday, Judge Stephanie Thacker wrote that the administration did nothing to distance itself from the first order, describing the revised ban as "the proverbial wolf in sheep's clothing".
The three dissenting judges, all appointed by Republican presidents, said the majority was wrong to look beyond the text of the order.
The government appealed U.S. District Judge Theodore D. Chuang's March injunction blocking the part of the revised order that bars entry to the U.S.to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen in a suit brought by the American Civil Liberties Union and the National Immigration Law Center on behalf of the International Refugee Assistance Project.
The appellate court took the deepest dive yet into the issue of whether statements made by candidate Trump should be considered in evaluating the executive order he issued after he became president. "Far from containing the sort of religious advocacy or disparagement that can violate the Establishment Clause, the Order contains no reference to religion whatsoever.
Regrettably, at the end of the day, the real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm".
The Middle East Studies Association, a scholarly group, is one of the plaintiffs in the case decided today by the Fourth Circuit.