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Appeal Over Trump's Travel Ban Will Go Straight to En Banc Hearing

By Casey C. Sullivan, Esq. on April 12, 2017 | Last updated on March 21, 2019

President Trump's revised travel ban was blocked by federal judges in Maryland and Hawaii less than a month ago, when both courts ruled that the executive order, which halted travel and immigration from six majority-Muslim nations, likely violated the Establishment Clause.

Now, the Fourth Circuit has agreed to hear the initial appeal from the Maryland court's ruling en banc, bypassing the typical three-judge panel altogether.

Maryland Court Halts Travel Ban

In March, Maryland District Court Judge Theodore D. Chuang halted Trump's travel ban hours before it was to go into effect. The executive order, Judge Chuang determined, was "intended to effectuate a partial Muslim ban by banning entry by citizens of specifically Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims."

The "primary purpose" of the ban "remains the effectuation of the proposed Muslim ban," Judge Chuang concluded. Thus, "there is a likelihood that the travel ban violates the Establishment Clause."

In so ruling, Judge Chuang, like his counterpart in Hawaii, relied heavily on President Trump's statements during and after the election campaign. Those included candidate Trump's press release on "Preventing Muslim Immigration," his tweets about "the extraordinary influx of hatred and danger coming into our country," and his statement, as he signed the first travel ban EO, that "This is the 'Protection of the Nation from Foreign Terrorist Entry into the United States.' We all know what that means."

The court enjoined the order's most controversial provisions nationwide.

Cutting Out the Middle Men

After the government appealed, the Fourth Circuit asked for briefing on the appropriateness of initial en banc review. The "extraordinary reach" of the district court's order and the need for prompt resolution of "the weighty legal questions presented" both agitate for initial review by the full Fourth Circuit, the government argued.

The civil rights organizations challenging the ban, led by the International Refugee Assistance Project, agreed. "There can be little doubt that the issues presented by this case meet the standard for initial en banc consideration," they wrote, citing "the devastating impact" of the executive order and the "fundamental principals at stake."

A majority of the Fourth Circuit's judges agreed. On Monday, the court announced that its members had voted for an initial en banc hearing, to be held on May 8th. Such a hearing puts the dispute on the fast track to resolution in the Fourth Circuit, or, perhaps more likely, appeal to the Supreme Court.

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