By Don Byrd
The 4th U.S. Circuit Court of Appeals upheld the block on President Donald J. Trump’s revised Executive Order regarding immigration and refugee admissions. Finding the primary purpose of the Order to be religious rather than secular, the May 25 decision leaves in place a lower court’s injunction halting the enforcement of the Order’s immigration bans.
Among other provisions, the March 6 Executive Order bars immigration from certain Muslim-majority countries. The court relied on President Trump’s controversial statements as a candidate calling for a ban on Muslim immigration, as well as statements made by his aides, to conclude that the true purpose of the order was to limit the ability of Muslims to enter the United States, rather than the national security rationale offered by the administration.
In the opening paragraph of the majority opinion, the chief judge describes the president’s Order as one which “speaks with vague words of national security” in the text, “but in context drips with religious intolerance, animus, and discrimination.”
“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,” the opinion states.
Several pages of the opinion detailed the president’s campaign statements regarding Muslims. The court emphasized that the statements, along with those of Trump’s representatives, “provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. … We need not probe anyone’s heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms.”
While the president is entitled to deference in matters of immigration policy, the court explained, “Once plaintiffs credibly call into question the political branches’ motives for exercising that power, our reason for deferring is severely undermined.”
It is well-established in church-state law that even when a government action sounds neutral with respect to religion, it might still be deemed unconstitutional if its purpose was to discriminate on the basis of religion. The plaintiffs argued in this case that removing the explicit religious language from the first Executive Order on immigration (which was issued January 27 and revoked by the revised Order issued March 6) does not cure the religious discrimination problem because the revised order remains an attempt to enact Trump’s campaign proposal for a Muslim ban and religious test in immigration policy.
The administration has appealed the ruling to the U.S. Supreme Court.
Other similar challenges across the country are winding their way through the court system. Most recently, the 9th Circuit also heard oral arguments in a similar suit challenging President Trump’s revised Executive Order.