Written by Don Byrd

On Thursday, the 4th Circuit U.S. Court of Appeals granted a preliminary injunction halting President Trump’s most recent attempt to limit immigration from certain countries.The court ruled that repeated statements from President Trump evince his hostiity toward adherents of Islam and make clear the connection between those sentiments and his desire to enact broad travel restrictions.

The third “travel ban” (EO-3) Proclamation restricts travel from seven countries to the U.S. (Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea) and limits travel to the U.S. for certain government officials from Venezuela and their families. Previous versions (EO-1 and EO-2) were halted by courts for, among other reasons, violating religious freedom guarantees by unlawfully targeting Muslim immigrants. Despite the addition of two countries (North Korea and Venezuela) to the list of restricted countries that are not majority Muslim, the third travel ban still runs afoul of the Establishment Clause of the U.S. Constitution, the 4th Circuit ruled by a 9-4 vote, because it gives official voice to the President’s discriminatory intentions toward Muslims.

I am including a lengthy quote from the opinion because it explains so thoroughly the basis of their ruling on this issue, and demonstrates the importance of government officials refraining from official action that is motivated by religious animus. That motivation in this case, the court emphasized, is not just evident from campaign statements. Even after his Inauguration, they note, President Trump repeatedly made clear his intentions. 

The 285-page opinion covers a number of topics. The Establishment Clause analysis section is found on pages 40-53. Excerpts from those pages (with citations removed) are below:

[T]he Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

Perhaps in implicit recognition of the rawness of the religious animus in the President’s pre-election statements, the Government urges us to disregard them. This is a difficult argument to make given that the President and his advisors have repeatedly relied on these pre-election statements to explain the President’s post-election actions related to the travel ban. And, in McCreary, the Supreme Court reminded us that “the world is not made brand new every morning.” Because “reasonable observers have reasonable memories,” these statements certainly provide relevant context when examining the purpose of the Proclamation. However, we need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation.

We need not do so because the President’s inauguration did not herald a new day. Rather, only a week after taking office, President Trump issued EO-1, which banned the entry of citizens of six Muslim majority countries, provided exemptions for Christians, and lacked any asserted evidence indicating a genuine national security purpose. The very next day, January 28, 2017, Rudy Giuliani, an advisor to President Trump, explained that EO-1’s purpose was to discriminate against Muslims. A reasonable observer could certainly conclude that in banning entry into the United States of 180 million Muslims, approximately 10% of the world Muslim population, EO-1 was crafted to deliver, as Giuliani said, on President Trump’s promise to “ban Muslim immigration to the United States.” This is particularly so given that every federal judge who considered the matter enjoined EO-1, finding that it likely violated the Constitution.

Shortly after issuance of these injunctions of EO-1, President Trump issued EO-2, which he and his advisors characterized as being substantially similar to EO-1. The President described EO-2 as “a watered down version of the first order.” Senior Policy Advisor Stephen Miller similarly explained that the changes to EO-2 were “mostly minor technical differences,” and promised that they would result in “the same basic policy outcomes for the country.” Then-White House Press Secretary Sean Spicer confirmed that “[t]he principles of the [second] executive order remain the same.” We subsequently found EO-2 also impermissibly motivated by religion, and upheld an injunction of it.

In the months that followed, the President continued to express his desire to return to “the original Travel Ban,” rather than “the watered down, politically correct version” in EO-2. On June 5, 2017, President Trump stated that the “Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!” and that “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to [the Supreme Court].” The very next day, then-White House Press Secretary Spicer explained that President Trump’s tweets are “official statements by the president of the United States.” Only nine days before issuing the Proclamation, President Trump tweeted, “The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!”

The President also continued to express what any reasonable observer could view as general anti-Muslim bias. In an August 17, 2017, tweet, the President endorsed an apocryphal story involving General Pershing and a purported massacre of Muslims with bullets dipped in a pig’s blood, advising people to “[s]tudy what General Pershing . . . did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” On November 29, 2017, President Trump retweeted three disturbing anti-Muslim videos entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!” The three videos were originally tweeted by an extremist political party whose mission is to oppose “all alien and destructive politic or religious doctrines, including . . . Islam.” When asked about the three videos, President Trump’s deputy press secretary Raj Shah responded by saying that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” The Government does not—and, indeed, cannot—dispute that the President made these statements. Instead, it argues that the “statements that occurred after the issuance of EO-2 do not reflect any religious animus” but reflect “the compelling secular goal of protecting national security from an amply-documented present threat.” We cannot agree.

Rather, an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation—to exclude Muslims from the United States. In fact, it is hard to imagine how an objective observer could come to any other conclusion when the President’s own deputy press secretary made this connection express: he explained that President Trump tweets extremist anti-Muslim videos as part of his broader concerns about “security,” which he has “addressed . . . with . . . the proclamation.”

The Government correctly points out that the President’s past actions cannot “forever taint” his future actions. President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims. But “an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense.” In fact, instead of taking any actions to cure the “taint” that we found infected EO-2, President Trump continued to disparage Muslims and the Islamic faith.

The U.S. Supreme Court previously agreed to hear a different challenge to the third travel ban (which had been halted on other grounds by the 9th Circuit.) The court requested that the parties brief the Establishment Clause issue as well. The date for oral argument has not yet been set.