The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the US Court of Appeals for the Fourth Circuit ruled that Donald Trump's third travel ban is unconstitutional because it was adopted for the purpose of discriminating against Muslims, in violation of the First Amendment. The presidential "proclamation" permanently bars nearly all entry into the United States by citizens of six Muslim-majority nations. In a 9-4 en banc decision, the court concluded, after "[e]xamining official statements from President Trump and other executive branch officials, along with the Proclamation itself,… that the Proclamation is unconstitutionally tainted with animus toward Islam." Five of the judges in the majority also conclude that the Travel Ban 3.0 violates immigration laws enacted by Congress, relying on reasoning similar to that adopted by the Ninth Circuit in in its December ruling against the ban.
The Fourth Circuit decision includes a detailed discussion of why Travel Ban 3.0 is just as "tainted" by religious animus as its predecessors, and why the addition of North Korea and some Venezuelan government officials in this latest travel ban does not materially affect its anti-Muslim focus. The inclusion of North Korea and the Venezuelan officials does not keep out any significant number of people who might have gained entry otherwise, and the other six nations covered by the travel ban are all overwhelmingly Muslim.
In addition, as the court explains, the supposed security justifications for the travel ban are extremely weak, and "the President repeatedly distanced himself from the[se] non-discriminatory policy rationales." For that reason, the court concluded that it must "accept the President's consistent characterization of his Proclamation as intended to invidiously discriminate against Muslims—and therefore hold that the Proclamation violates the law."
Judge James Wynn's concurring opinion includes an exceptionally thorough discussion of the reasons why the president's numerous statements advocating a "Muslim ban" and equating that goal with the "territorial" approach adopted in the various travel ban orders are relevant evidence that courts must consider. I addressed this same issue, myself, here. Campaign promises and other statements by decision-makers are relevant evidence of motive, and motive is an essential element of any case where the plaintiffs challenge a seemingly neutral law or regulation on the basis that it is intended to discriminate on the basis of race, sex, religion, or some other prohibited classification.
Such pretextual discrimination claims are a longstanding and vital element of constitutional antidiscrimination law. Without them, government officials could easily target disfavored minority groups simply by focusing on some characteristic that is heavily correlated with group membership. For example, officials intent on discriminating against African-Americans could target people who live in overwhelmingly African-American neighborhoods, a strategy similar to Trump's approach of targeting overwhelmingly Muslim nations.
The Fourth Circuit decision is not a surprise. The same court issued a very similar ruling against Travel Ban 2.0, for much the same reasons, by a 10-3 margin that was nearly identical to yesterday's 9-4 vote. The Fourth Circuit decision largely affirms an October 2017 trial court ruling against Travel Ban 3.0, which was also based on religious discrimination grounds.
Yesterday's ruling reinforces my view that Travel Ban 3.0 has nearly all the same flaws as its predecessor, and may in some ways be even worse. The same two appellate courts that issued rulings against Travel Ban 2.0 have now also ruled against the latest version, and for largely the same reasons.
The 285 pages of majority, concurring, and dissenting opinions in the Fourth Circuit case include discussion of a variety of secondary issues, such as whether and to what extent different plaintiffs have standing to challenge the travel ban. But by far the most important aspects of the case are the question of anti-Muslim discrimination, and whether the travel ban violates federal law forbidding discrimination on the basis of "nationality" in the issuance of immigration visas. Both issues have important implications that go beyond the travel ban case. Their resolution will determine whether and to what extent the president will be free to adopt discriminatory restraints on entry into the United States, particularly ones that openly discriminate on the basis of nationality or use a thin veneer of neutrality to target disfavored religious groups.
Even before the Fourth Circuit issued its ruling, the Supreme Court had already decided to review the Ninth Circuit ruling against Travel Ban 3.0. The two cases are now likely to be consolidated and reviewed together. Unlike in the case of the Travel Ban 2.0 cases, which the Supreme Court dismissed as moot after that travel ban order was displaced by the third one, this time the Supreme Court will probably have to decide the case on the merits.
I am currently in Japan, completing an academic speaking engagement, and so do not have the time to analyze the Fourth Circuit ruling in greater detail. But I will have much more to say about the Travel Ban 3.0 cases in future posts.