On Thursday, the U.S. Court of Appeals for the Fourth Circuit in Virginia ruled against President Trump’s latest travel ban on six largely Muslim countries, plus North Korea and Venezuela. The appeals court found that the ban unconstitutionally discriminates against Muslims.
In December, the 9th Circuit in California found that Trump had exceeded the scope of his authority in issuing the ban. However, also in December, the U.S. Supreme Court said the ban can be fully enforced while the legal challenges work their way through the courts. The Supreme Court will hear the case in April.
On one side are groups saying the ban has a devastating impact on U.S. residents who want to reunite with their family, and on foreign students seeking higher education in the U.S. On the other side is the Trump administration which has said the ban is necessary to protect national security. The latest ban is nuanced, blocking business travelers and tourists to varying degrees in the named countries and allowing students from some.
Before the 4th Circuit judges, the administration had argued that the President has broad authority to bar foreign nationals who might be detrimental to the interests of the U.S. A multi-agency review had found that the countries specified do not share enough security-related information with our government.
The appeals court said it was free to go outside the four corners of the ban, look behind it, and consider Trump’s statements on the campaign trail and thereafter as evidence of Trump’s motive to discriminate. [opinion, pp.40-42] Trump himself called it a “Muslim ban”. The court concluded that the ban is “unconstitutionally tainted with animus toward Islam." [p. 28]
The court rejected the government’s security rationale as weak. The multi-agency review was not sufficient evidence of national security concerns because it was not made public and, therefore, cannot be examined. Moreover, the countries selected for the ban reportedly don’t fit the criteria specified in the multi-agency review. [pp. 50-51]
The addition of North Korea and Venezuela to the ban didn’t cure its constitutional defects because only a handful of people from those countries were actually affected, compared to tens of thousands from the six Muslim countries, leaving the ban with largely an anti-Muslim focus. [p. 50]
It all sounds plausible until you realize you’re in a funhouse of mirrors and shifting floors created by the Supreme Court. The Establishment Clause of the First Amendment reads: “Congress shall make no law respecting an establishment of religion….” I showed you in December how the Supreme Court has expanded this clause way beyond its original meaning which was directed towards preventing the government from establishing an official church. The clause now prevents the government from preferring or advancing one religion over another in any way, or attempting to suppress any particular set of religious beliefs. [opinion, p. 27] The Supreme Court has embroidered the Establishment Clause with all kinds of fancy filigree over the years.
As a result, it’s not enough that the travel ban doesn’t mention religion or is neutral on its face. [pp. 45-46] It’s also not enough that the ban protects national security. The government has to prove that an action’s secular purpose – national security in this case - is the PRIMARY purpose, not just ONE purpose among many, of the action. [Lemon, McCreary cases, opinion p. 44-45]
The two cases from the 4th and 9th Circuits are likely to be heard together. Some have taken the Supreme Court’s letting the ban go into effect in December as a sign it will uphold the ban when it decides the case. As the Justices like to say up there, the Constitution is what they say it is. We’ll have to wait until after April to find out what’s in it.
This is another reason why we need a constitutional amendment to allow super-majorities of state legislatures to overrule the Supreme Court on constitutional questions, but more on that at a later date.