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4th Circuit Strikes Travel Ban 3.0 for Discrimination

By William Vogeler, Esq. on February 15, 2018 | Last updated on March 21, 2019

President Trump's on-again, off-again travel ban is off again, at least in principle.

The U.S. Fourth Circuit Court of Appeals said the ban -- the third one -- is unconstitutional. The appeals court said in International Refugee Assistance Project v. Trump that the ban wrongfully discriminates against people of Islamic faith.

However, the decision does not supersede the U.S. Supreme Court's decision in December that allowed the ban to stand pending litigation. If you are confused, you may want to get off the bus now because it's headed back to Washington.

Third Travel Ban

The Supreme Court is scheduled to hear arguments in April and to issue a ruling by the end of June. In the meantime, the attorneys in the case are scrutinizing the Fourth Circuit ruling.

"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," Chief Judge Roger Gregory wrote in the ruling.

In the 9-4 decision, the majority said Trump showed his bias against Muslims before and after he was elected. Gregory noted Trump's "disparaging comments and tweets regarding Muslims," and his campaign promise of "a total and complete shutdown of Muslims entering the United States."

The current ban blocks most people from Chad, Iran, Libya, Somalia, Syria, and Yemen. Many are barred from working, studying or vacationing in the United States.

Second-Guessing

The Fourth Circuit is the second federal appeals court to rule against the revised executive order. The Ninth Circuit ruled against it on other grounds in December, and both appeals courts have blocked previous versions of the ban.

Dissenting in the Fourth's latest ruling, Judge Paul Niemeyer said the majority should not have considered Trump's political comments to interpret the travel order. He said the ruling could open the door for courts to second-guess executive actions.

"At bottom, the danger of this new rule is that it will enable a court to justify its decision to strike down any executive action with which it disagrees," he said. "It need only find one statement that contradicts the official reasons given for a subsequent executive action and thereby pronounce that the official reasons were a pretext."

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