In writing for the majority in the Fourth Circuit’s May 25, 2017 en banc decision on the second Immigration Order, Chief Judge Roger L. Gregory pulled no punches. The combined opinions of the Court in International Refugee Assistance Project v. Trump (No. 17-1351) span 206 pages, but in the opening paragraph of his majority opinion, the Chief Judge puts a dagger into the Administration’s arguments. He writes:
The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex Parte Milligan, 71 U.S. (4 Wall) 2. 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with the vague words of national security, but in context drips with religious intolerance, animus, and discrimination.
There’s no ambiguity in these words.
Thirteen of the Fourth Circuit’s fifteen judges participated in the en banc argument (two judges recused themselves—more on this below). Chief Judge Gregory’s opinion is joined by six other judges from the court. There are two concurring opinions (including substantially concurring votes with the majority), and three dissents.
The bottom-line result is that the Fourth Circuit affirmed the Maryland District Court’s nationwide preliminary injunction barring enforcement of Section 2(c) of Executive Order 13780, the second Immigration Order signed by President Trump. The decision was probably expected, but the vitriolic tenor of the majority opinion is still a surprise.
The same Executive Order is the subject of an injunction entered by a Hawaii federal judge. That ruling is also on appeal, and a three-judge panel from the Ninth Circuit heard oral argument on May 15, 2017. That panel is not yet ruled.
On June 1, 2017, the Administration filed in the U.S. Supreme Court its Petition for a Writ of Certiorari and for an emergency stay of the decision. A stay requires the affirmative votes of five Justices.
Isolation of the Judicial Review Issue
The issue at the core of the Immigration Order battle is whether in the immigration context the federal courts should look behind the facial justifications given for the Executive Order. The campaign statements of candidate Trump allegedly evidenced an anti-Muslim animus, and post-inauguration statements by the President and his advisors were alleged to confirm this animus. But it was generally conceded that the obvious flaws in EO-1 were corrected and that EO-2 was facially neutral.
In the briefing and at the oral argument, the Administration aggressively defended the second Immigration Order as facially legitimate, and argued that for this reason the Court should look no further. The Plaintiffs alleged that the Order’s stated purpose was given in bad faith, and therefore, the federal courts must consider whether the Plaintiffs made the requisite showing of bad faith.
Fourth Circuit’s Majority Analysis
The Fourth Circuit moved to the core issue finding “that Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose.”
The Court then delivered its key finding: “Plaintiffs have made a substantial and affirmative showing that the government’s national security purpose was proffered in bad faith, we [therefore] find it appropriate to apply our long-standing Establishment Clause doctrine.” Chief Judge Gregory concluded that “the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.” The opinion discusses the now familiar evidence from the litigation on both the first Immigration Order and the second Immigration Order. “[T]he Government’s argument that EO-2’s primary purpose is related to national security . . . is belied by evidence in the record that President Trump issued the first Executive Order without consulting the relevant agencies, . . . and that those agencies only offered a national security rationale after EO-1 was enjoined.´ This leads to the circuit court’s conclusion, “[L]ike the district court, we think the strong evidence that the national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a ‘litigating position’ than is the actual purpose of EO-2.”
The Chief Judge then again applied the dagger:
The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the in the name of the Constitution’s separation of powers. We declined to do so not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.
Judge Keenan offered a concurring opinion, which Judge Thacker joined. Judge Wynn added his own concurring opinion.
The Three Dissents
Judges Niemeyer, Shedd, and Agree wrote dissenting opinions.
In his dissent, Judge Niemeyer accepted the Administration’s argument that in the immigration context the federal courts should not look beyond the given facially legitimate and bona fide reasons for the Immigration Order. He concludes, “considering the Order on its face, as we are required to do . . . it is entirely without constitutional fault that the Order was a valid exercise of the President’s authority . . . “Judge Niemeyer would draw the line as barring any further court review. But after this defense was breached, he is deeply troubled by the majority’s willingness to rely on statements made by candidate Trump during the presidential campaign.
The second dissent, by Judge Schedd, joins with Judge Niemeyer, but adds a practical public interest analysis. He concludes that “the district court’s public interest analysis misses the mark.” When weighing the public’s interest, as courts are required to do when considering preliminary injunctions, the national security interests of the nation seem to have been swept under the rug. Judge Shedd would deny a preliminary injunction on the ground that a balancing of interests favors enforcement of the Order.
Judge Agee joins with the other dissenters, but states as a separate basis for his dissent the questionable standing of the remaining Plaintiffs. Obviously, if the remaining Plaintiffs have no standing, the Court could end the case.
Judge Wilkinson’s Recusal
Judge J. Harvey Wilkinson recused himself because his son-in-law is the acting Solicitor General who argued the case for the Administration. While the recusal was legally appropriate, Judge Wilkinson’s absence deprives the decision of the analysis from one of the Fourth Circuit’s thought leaders. His vote would not have changed the result, but if Judge Wilkinson had participated and had joined the majority, or had provided a concurring opinion, then the Administration might be very hesitant to push this case to the Supreme Court. On the other hand, a strong dissent from Judge Wilkinson would have added gravitas to the Administration’s arguments.
The Fourth Circuit’s en banc decision in International Refugee Assistance Project v. Trump does not come as a surprise, based upon the oral argument. The circuit court perhaps could have decided for the Administration by adopting Judge Trenga’s analysis (see EDVa Update March 30, 2017 Post, EDVa Back in the Immigration Fray: Judge Trenga Provides Qualified Win for President Trump’s New Immigration Order), but it went decidedly the other way in its 10-3 decision. The surprise is the vitriolic tenor of the majority opinion. The en banc argument was civil, as is always so in the Fourth Circuit. But the opinions evidence deep-seated and intense views on the role of the federal courts and on the veracity of the Trump Administration, and certainly the Chief Judge pulled no punches when he wrote for the majority.
The late-breaking news is that the Administration has filed its Petition for Certiorari with the U.S. Supreme Court. An early vote on the request for a stay (which can come this month before the summer recess) would signal the Court’s leaning on the issues.