Sessions Says DOJ Will Seek Supreme Court Review of Travel BanBy , , and
Appeals court’s ruling is latest setback to president’s agenda
Executive order still being weighed by San Francisco court
The Justice Department vowed to challenge an appeals court ruling that slammed a travel ban against six Muslim majority nations as being "steeped in animus," putting President Donald Trump on track for his first Supreme Court showdown.
Attorney General Jeff Sessions said the administration “strongly disagrees” with the court’s refusal Thursday to lift a nationwide freeze on the ban. The judges said the directive “drips with religious intolerance, animus and discrimination.”
“The president is not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk,” Sessions said.
The administration didn’t say when it would appeal. The government could ask the Supreme Court to take emergency action to let the ban take effect while the litigation plays out. The White House so far has eschewed taking that step during the months-long legal fight over the travel ban.
Trump’s position was strengthened last month when the Senate confirmed his Supreme Court nominee, Neil Gorsuch. Reinstating the ban would require the votes of five of the nine justices, with Justice Anthony Kennedy as the likely swing vote.
If the court agrees to hear the case, the appeal wouldn’t be heard until fall at the earliest, unless the justices take an extraordinary step and order arguments sooner.
Omar Jadwat, the lawyer with the American Civil Liberties Union who argued the case, predicted the Supreme Court would agree with the Virginia court, should it hear the case. "We have won at every stage so far, and we’ve won because this ban is such a stark violation of our fundamental principles of religious liberty," he said.
Thursday’s ruling was the first of two appeals court decisions focused on whether to uphold temporary injunctions blocking the ban. In both cases, the courts are weighing facts alleged in the lawsuits and determining whether the plaintiffs are likely to prevail. A trial could be months or years away.
The judges used especially harsh language in a 79-page decision warning that government missteps in dealing with religion can foster hostility and division and encourage persecution of minorities.
“The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an executive order steeped in animus and directed at a single religious group,” the panel said.
A San Francisco-based court, generally viewed as more liberal than the one in Virginia, heard arguments on the same issue on May 15.
As a measure of the case’s consequence, the full appeals court in Richmond, rather than the typical three-judge panel, opted to decide whether a district judge in Maryland properly blocked Trump’s order. By a vote of 10-3, the appeals court upheld the Maryland judge, although several judges did not join fully in the majority’s opinion.
A forerunner of the executive order incited chaos and condemnation when it was rolled out without warning in January. Federal courts soon blocked its enforcement, prompting a re-do. Subsequent controversies have distracted from Trump’s agenda, including his firing of FBI Director James Comey amid the bureau’s investigation into potential campaign ties to Russia.
The case hinged largely on whether Trump’s comments on the campaign trail -- such as calling for a total shutdown on Muslims entering the country -- should be used to determine the motive of the travel ban. The government argued that Trump’s comments as a private citizen -- as well as statements by former New York City Mayor Rudy Giuliani, a Trump adviser -- were irrelevant. The court disagreed.
“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,” the court said, using shorthand for the second executive order.
The court pointed to Trump’s campaign comments including, “We’re having problems with the Muslims.” It said the president has “broad power” to deny entry to aliens but that power isn’t absolute. The judges discounted the administration’s anti-terror rationale for the ban, saying the White House hadn’t detailed the risks posed by those covered by the order and had issued its first decree without consulting national security agencies.
The ruling had a partisan tinge. Judges voting to uphold the freeze were appointed by Democratic presidents, although one was reappointed by a Republican. The three dissenters were named by Republicans.
A 2015 Supreme Court opinion written by Justice Kennedy has become a pivotal precedent in the legal fight. In a case involving a U.S. citizen seeking to challenge the denial of her Afghan husband’s visa application, Kennedy said courts shouldn’t second-guess immigration decisions "absent an affirmative showing of bad faith." Although Kennedy wrote only for himself and Justice Samuel Alito, the opinion represented the controlling reasoning for the splintered court.
In Thursday’s decision, the appeals court pointed to Kennedy’s opinion and said the Trump administration had acted in bad faith.
The three dissenting judges said the appeals court was wrong to consider Trump’s campaign statements. Judge Dennis Shedd added that the “real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm.”
Lower courts have divided on whether to consider Trump’s words on the campaign trail. A Hawaii judge who also blocked the order said a “court will not crawl into a corner, pull the shutters closed and pretend it has not seen what it has.” But a Virginia judge said he’s not going to look to Trump’s comments as a candidate and “psychoanalyze the president” for his motives in drafting the ban.
The case is International Refugee Assistance Project v. Trump, 17-1351, U.S. Court of Appeals, Fourth Circuit (Richmond).