The United States Court of Appeals for the Fourth Circuit in a 10-3 decision has affirmed a lower court’s granting of a preliminary injunction against one provision of President Trump’s second immigration ban on the ground that it is motivated by anti-Muslim animus.  Earlier this year, we posted about the Ninth Circuit’s decision finding that President Trump’s first immigration ban likely violated the Due Process Clause of the U.S. Constitution, and that it could also potentially violate the First Amendment’s Establishment Clause.  Now, the Fourth Circuit has concluded that the immigration ban likely violates the Establishment Clause because it discriminates against Muslims.  The violation was “likely” rather that definite, because one element of a preliminary injunction analysis is “likelihood of success on the merits.”

Although the text of the ban is neutral, the court found that its context shows otherwise.  It based its decision on President Trump’s statements made in interviews, on social media, and by his advisors and appointees (Rudolph Giuliani, Sean Spicer, Jefferson Sessions, and Rex Tillerson) – both during his presidential campaign and during his presidency.  According to the Fourth Circuit, this evidence reveals that while the text of the second ban “speaks with vague words of national security … in context [it] drips with religious intolerance, animus, and discrimination.”

The second ban followed the Ninth Circuit’s decision and again declares that “unrestricted entry” of nationals from certain Muslim-majority countries “would be detrimental to the interests of the United States” based on alleged terror threats.  The first ban applied to seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), but the second ban eliminates Iraq from the list.  The second ban retains some but not all of the first ban’s provisions – including decreasing the number of refugee admissions for 2017 and suspending for 120 days the United States Refugee Admissions Program.  At issue before the Fourth Circuit was one specific provision of the second immigration ban which imposes a 90 day suspension of entry for nationals from the six countries.

The Fourth Circuit observed that although there is generally a “narrow standard of [judicial] review of decisions made by Congress or the President in the area of immigration and naturalization,” deference is unwarranted where the decision is motivated by bad faith.  According to the court, there is sufficient evidence to suggest that the purpose of the second immigration ban is to target Muslims rather than to protect national security interests:

Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1.

In addition, the court noted that “on December 7, 2015, Trump posted on his campaign website a ‘Statement on Preventing Muslim Immigration,’ in which he ‘call[ed] for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on’ and remarked, ‘[I]t is obvious to anybody that the hatred is beyond comprehension … [O]ur country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.”  The court also noted that on March 9, 2016, Trump stated in an interview that “Islam hates us,” and that “[w]e can’t allow people coming into this country who have this hatred.”

This evidence caused the Fourth Circuit to affirm the lower court’s decision to grant a preliminary injunction based on the likelihood that the second immigration ban violates the first prong of the Establishment Clause test set forth in Lemon v. Kurtzman (whether the government action has a secular purpose).

The Fourth Circuit’s 205-page decision in International Refugee Assistance Project v. Donald J. Trump is available here.