Donald Trump’s executive order putting a temporary slowdown on immigration continues to be beleaguered by progressive justices.
The framework for Trump’s suspension was based on seven countries the Obama administration deemed “areas of concern.”
Despite the legitimate concerns surrounding travel from these countries, the 4th Circuit Court of Appeals may have jeopardized national security.
The Appeals court made a faulty legal ruling and upheld the lower court’s decision.
President Donald Trump on Thursday suffered the latest blow to his efforts to temporarily halt travelers from a half-dozen terrorism-compromised countries.
This time, it was the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals. It joins U.S. District Court judges in Washington State and Hawaii. In addition, the San Francisco-based 9th Circuit Court of Appeals had blocked an earlier version of Trump’s executive order, which had targeted seven countries.
The ruling revealed a stark partisan split. All 10 judges in the majority are Democratic appointees, while the three judges who dissented are Republican appointees.
As previous courts have done, the majority opinion from the 4th Circuit interpreted Trump’s executive order as “Muslim ban” and cited his statements as a candidate and as president. The ruling recites a long list of those statements on Twitter and in speeches and interviews. It also cited statements by administration aides.
Chief Judge Roger Gregory wrote that Trump’s executive order contains “vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
The judges determined that the plaintiffs were likely to win on constitutional grounds — that the executive order violates the First Amendment’s protection of religion.
“Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles — that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another,” Gregory wrote.
Judge G. Steven Agee, writing for himself and Judges Paul Niemeyer and Dennis Shedd, accused the majority of ignoring Supreme Court precedent.
“In their haste to reach the merits of the plaintiffs’ Establishment Clause claim, my colleagues in the majority neglect to follow the longstanding and well-defined requirements of Article III of the United States Constitution,” Agee wrote.
The dissenting opinion maintains the plaintiffs did not even have a legal right to sue in this case.
Hans von Spakovsky, a legal expert at the conservative Heritage Foundation, called the majority opinion “legal trash” and predicted it would end up at the Supreme Court. He noted that the text of Trump’s revised executive order does not even mention religion. Yet, the majority opinion concludes it demonstrates religious intolerance.
“That is ridiculous,” he said. “That is absurd. Nothing in the executive order has any relation to religious intolerance.”
Christopher Hajec, litigation director of the Immigration Reform Law Institute, also blasted the ruling.
“They have ignored the most important point here, which is that the American people have the undeniable sovereign right to make war or exclude aliens for any reason or no reason at all,” he told LifeZette.
By focusing on the statements of Trump and his aides, Hajec said, the ruling suggests that the exact same executive order issued by a different president would be legal. It is a point that the law group raised in a friend-of-the-court brief supporting the president’s claim. One of the judges asked a similar question during oral arguments.
The original executive order covered seven countries that either sponsor terrorism or have non-functioning governments that make background checks of its citizens difficult — Libya, Iran, Iraq, Yemen, Somalia, Sudan and Syria. The revised order dropped Iraq from the list, made clear that it did not apply to legal permanent residents of the United States, and deleted references to giving priority to asylum-seekers claiming religious persecution.
The order sought to impose a 90-day freeze on travelers from those countries to give U.S. officials time to review screening procedures. It also included a 120-day freeze on refugee resettlement and a reduction in the overall number of refugees America would take this fiscal year.
Notwithstanding a string of adverse court rulings, statistics indicate that the Trump administration has dramatically slowed the pace of refugee resettlement.
The man who authorities say set off a bomb that killed 22 people and injured dozens at a concert in Manchester, England, this week reportedly spent several weeks in Libya and Syria.They are two of the countries on Trump’s list. Hajec said the Manchester bombing is exactly the type of incident that the president was seeking to prevent.
At least until the Supreme Court weighs in — if the justices decide to take the case — the United States will not be able to prevent people from those countries from coming into the country without actionable intelligence against specific individuals.
“It could be because of that, our national security is at risk,” Hajec said.
Conservatives aren’t the only ones who find the legal opposition to Trump’s travel suspension unsound.
From Fox News:
Longtime Democrat and Harvard Law professor Alan Dershowitz said the appeal should not have been necessary because [U.S. District Court Judge Theodore] Chuang never should have ruled against it in the first place.
Dershowitz said the two judges who blocked the ban focused so heavily on President Trump’s campaign rhetoric and not the text of the order, that he believed if President Obama issued the exact same order it would have been upheld.
“That’s not the way the law is supposed to operate,” Dershowitz said. “I do not believe this is a Muslim ban.”
He said the blockages of Trump’s travel ban are the first time he has seen courts focus on “the ambiguous rhetoric of a candidate.”
The constitution gives the president broad powers to limit immigration. Some believe the United States needs a moratorium on immigration, as has been done in the past.
If the Supreme Court hears the case, as expected, and upholds the Appeals court’s decision, it could have unsettling consequences for national security.