Fourth Circuit Finds Religious Animus Fatal Flaw in Travel Ban

While the Supreme Court has agreed to review the constitutionality and legality of the third travel ban, the Fourth Circuit has joined the Ninth Circuit in striking it down. The Fourth Circuit concluded it likely violates the Establishment Clause because its primary purpose is to discriminate against Muslims.

Per a December 2017 Supreme Court order, the third travel ban is currently in effect regardless of the Ninth and Fourth Circuit rulings.    

On September 24, 2017, President Trump issued a presidential proclamation (the third travel ban) indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Lawsuits were brought immediately in the Ninth and Fourth Circuits.

The challengers claimed the third travel ban violates the First Amendment Establishment Clause by disfavoring Muslims. Challengers first had to convince the Fourth Circuit that the reasons the federal government gave to justify the ban weren’t “bona fide.”

The travel ban’s stated purpose is “to protect [U.S.] citizens from terrorist attacks and other public-safety threats” and “to encourage foreign governments to improve their information-sharing and identity-management protocols and practices and to regularly share identity and threat information with our immigration screening and vetting systems.”

But, according to the court, “the words of the President” demonstrate that the travel ban’s primary “purpose is driven by anti-Muslim bias.” “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 [the first and second travel bans], addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks [the first and second travel bans], but which President Trump and his advisors described as having the same goal as [the first and second travel bans].”

While the government tried to claim it had a secular purpose in issuing the third travel ban the court considered the President’s November 29, 2017 retweets of three anti-Muslim videos. President Trump’s deputy press secretary said 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 [third travel ban].” According to the court, “it is hard to imagine how an objective observer could come to any other conclusion [except that the primary purpose of the third travel ban was to exclude Muslims] when the President’s own deputy press secretary made this connection express.”

The Ninth Circuit did not rule whether the third travel ban likely violates the Establishment Clause.  It concluded the ban likely violates the Immigration and Nationality Act (INA) because it prohibits entry indefinitely, fails to make findings that “foreign nationals’ nationality alone renders entry of this broad class of individuals a heightened security risk to the United States,” and amounts to national origin discrimination.

The Supreme Court has agreed to rule on both the Establishment Clause and INA challenges. The Court has not yet set a date for oral argument. It will issue a decision by the end of June 2018.