Yesterday, in a highly anticipated 10-3 decision in International Refugee Assistance Program v. Trump, the U.S. Fourth Circuit Court of Appeals affirmed Maryland Judge Theodore Chuang’s nation-wide injunction of the provision of President Donald Trump’s revised executive order that suspended immigrant and refugee entry to the United States. In a lengthy and comprehensive opinion for the majority, Chief Judge Roger Gregory focuses on the central issue in the case: whether the Constitution “protects Plaintiffs’ right to challenge an Executive Order that in the text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” The court concludes that the president’s power “cannot go unchecked where, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation,” and affirmed “in substantial part” the district court’s suspension of Section 2(c) of Trump’s travel ban.
Below we summarize the majority opinion and the numerous concurrences and dissents.
Factual and Procedural History
Judge Gregory starts by painstakingly laying out the history of Trump’s original and revised travel bans.
Seven days after being sworn in as president, Trump signed E.O. 13769, entitled “Protecting the Nation From Foreign Terrorist Entry Into The United States” (which Amira summarized for Lawfare here and Ben analyzed here), invoking his authority under 8 U.S.C. § 1182(f) to suspend immigrant and nonimmigrant entry of foreign aliens for 90 days from seven Muslim-majority countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen). This suspension’s stated purpose was to give Secretary of State Rex Tillerson, Secretary of Homeland Security John Kelly, and Director of National Intelligence Dan Coates time to conduct a review of the vetting process for admitting immigrants and refugees with an eye towards tightening it. The E.O. also severely restricted the entry of refugees, indefinitely suspending entry for Syrian refugees and suspending refugee entry from all countries for 90 days. After that 90 days, refugees from the countries listed in the E.O. of a minority religion were to have their entry prioritized if they made claims of religious persecution.
The order was immediately challenged in federal district court in Washington state, where Judge James Robart issued a temporary restraining order against it, which the Ninth Circuit declined to lift (see here and here). Trump then issued a revised order on March 6.
Trump’s second executive order (which is summarized here for Lawfare by Helen Klein Murillo and analyzed by Ben here) included substantial revisions. Judge Gregory notes that Section 2 of the order, the relevant provision for purposes of the plaintiffs’ challenge, continued the 90-day suspension, but removed Iraq from the list of countries. The order states that the remaining countries “present heightened threats” as “state sponsors of terrorism.” Section 2 also provides descriptions of the problematic conditions in each country. In marked departures from the original order, the revised E.O. clarifies that its provisions are restricted to those outside the United States who did not have a valid visa on or after January 27, 2017; permits consular officers to grant waivers on a case-by-case basis; eliminates the indefinite ban on Syrian refugees; and eliminates the preferential treatment provision.
As the Fourth Circuit points out in its analysis, a classified DHS memo obtained by MSNBC shortly before the second order was signed asserted that most foreign-born U.S.-based terrorist had been longtime residents of the United States before radicalizing and that increased screening was unlikely to help, undermining the rationale provided by the Trump administration to support the order.
IRAP v. Trump (District Court)
On February 7, 2017, six individuals—Americans citizens or lawful permanent residents (LPRs) who have family members seeking entry from one of the designated countries—brought suit against Trump and members of his Cabinet in federal district court seeking declaratory and injunctive relief against the first E.O. They claimed the order violated the Establishment Clause and Due Process Clause of the Constitution, the Immigration and Nationality Act (INA), the Religious Freedom and Restoration Act (RFRA), and the Administrative Procedures Act (APA).
On March 10, 2017, four days after promulgation of the second E.O., the plaintiffs sought to enjoin implementation of it in its entirety. Four of the plaintiffs (Paul Harrison, two John Does, and a Jane Doe) claim that Section 2(c) of the E.O. will “prolong their separation from their loved ones,” by preventing them from obtaining visas, while “several” of the plaintiffs claim that the anti-Muslim animus in the executive caused them “feelings of disparagement and exclusion.” The organizational plaintiffs (the International Refugee Assistance Program and the Hebrew Immigrant Aid Society) claim that they have had to divert significant resources to deal with the fallout of the E.O. and that their clients are injured by it.
Judge Chuang determined that four plaintiffs had standing to sue under either the INA’s prohibition against discrimination based on nationality or the Establishment Clause. The district court then ruled that the plaintiffs were likely to succeed under the INA only as it applied to immigrant visas, but would most likely prevail on their Establishment Clause claims. The district court therefore issued an injunction against Section 2(c) of the revised executive order as violative of the Establishment Clause. The government appealed.
Statutory (8 U.S.C. § 1182(f)) Claim
The Fourth Circuit majority begins its analysis by addressing the plaintiffs’ claim that the president’s actions violates 8 U.S.C. § 1152(a)(1)(A), which prohibits discrimination on the basis of of nationality “in the issuance of immigrant visas.” The court explained that the district court limited the plaintiff’s allegation here by (1) limiting § 1152(a)(1)(A)’s application only to immigrants visas (not nonimmigrant visas), and (2) pointing out that it only applies to visas, not necessarily entry.
Explaining that it would be required to look at the plaintiff's’ Establishment Clause claim whether it agreed with the district court’s analysis of § 1152(a)(1)(A) or not, the court quickly concludes that it will not address the district court’s statutory ruling. While acknowledging the doctrine of constitutional avoidance from American Foreign Service Association v. Garfinkel, the court states it is forced to examine the plaintiff’s constitutional claim because this is largely the basis for the district court’s injunction.
The court begins its analysis with a de novo examination of whether the plaintiffs have standing.
To establish Article III standing as a “case or controversy,” a plaintiff must show “(1) an injury in fact; (2) a sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision” (Lujan v. Defenders of Wildlife). The injury in fact should be “actual or imminent, not conjectural or hypothetical” (Spokeo, Inc. v. Robins). And the court must assume arguendo that Section 2(c) of E.O. violates Establishment clause of the Constitution (Cooksey v. Futrell).
The court explains that the plaintiffs must allege "direct harm of what is claimed to be an establishment of religion," to establish standing in an Establishment clause suit, but also that the “direct harm” can either be tangible (such as a pecuniary loss from forcing you not to work on Sundays), or intangible (such as "feelings of marginalization or exclusion") based on Suhre v. Haywood County.
In examining John Doe #1's claim, the court highlights two bases of standing: separation from his wife (which the government acknowledges can be a basis for standing-in-fact) and feelings of marginalization and exclusion stemming from the executive order's alleged animus towards Muslims. The court dismisses the government's claim that Doe's harm of separation is not "imminent" because Section 2(c) constitutes simply a "short pause" in entry, reasoning that if Section 2(c) were to be implemented, it would result in either a delay in the issuance of Doe #1's wife visa, or its denial altogether, “forcing her to restart the [lengthy visa] application process” all over again after having come so close to entry.
This, coupled with the message from the executive order that Muslims are “outsiders, not full members of the political community,” (which inspires the prohibited feelings of marginalization and exclusion) is enough for the court to believe John Doe #1 has asserted injuries sufficient to establish standing.
The court then criticizes the government's standing arguments:
The Government attempts to undercut these injuries in several ways. It first frames Plaintiffs’ injuries as “stress.” That minimizes the psychological harm that flows from confronting official action preferring or disfavoring a particular religion and, in any event, does not account for the impact on families. The Government next argues that because the Second Executive Order “directly applies only to aliens abroad from the specified countries,” it is “not directly targeted at plaintiffs,” who are based in the United States, “in the way that local- or state-government messages are.” An executive order is of course different than a local Sunday closing law or a Ten Commandments display in a state courthouse, but that does not mean its impact is any less direct. Indeed, because it emanates from the highest elected office in the nation, its impact is arguably felt even more directly by the individuals it affects. From Doe #1’s perspective, the Second Executive Order does not apply to arbitrary or anonymous “aliens abroad.” It applies to his wife.
The court then rejects the government's assertion that the John Doe #1 is asserting third-party rights, since he has shown personal harm. The court concludes that whether the other plaintiffs have standing is irrelevant, since John Doe #1 does. Lastly, the court rejects the government's “ripeness” claim based on a potential waiver, on the grounds that since the plaintiff's claim presents a strictly legal question “not dependent on the factual uncertainties of the waiver process,” under Miller v. Brown the claim can be adjudicated.
In one last attempt to dispute standing, the government argues that under the D.C. Circuit case Saavedra Bruno v. Albright, “a consular official’s decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise.” However, the court points out that this opinion also states that when cases are brought by U.S. citizens, or when they couple statutory claims with constitutional ones (both of which are the case here), that judicial review is permitted.
The court criticizes the government's reasoning at a higher level:
Behind the casual assertion of consular nonreviewability lies a dangerous idea— that this Court lacks the authority to review high-level government policy of the sort here. Although the Supreme Court has certainly encouraged deference in our review of immigration matters that implicate national security interests . . . it has not countenanced judicial abdication, especially where constitutional rights, values, and principles are at stake. To the contrary, the Supreme Court has affirmed time and again that “it is emphatically the province and duty of the judicial department to say what the law is.” This “duty will sometimes involve the ‘resolution of litigation challenging the constitutional authority of one of the three branches,’” but courts cannot avoid their responsibility.
Establishment Clause Claim
The remaining half of the court’s opinion focuses on the Establishment Clause claim. The court begins by acknowledging that “[a] preliminary injunction is an ‘extraordinary remed[y]’ involving the exercise of very far-reaching power,’ and is ‘to be granted only sparingly and in limited circumstances.’”
Under Lemon v. Kurtzman, an Establishment Clause case, the district court found that the plaintiffs were likely to succeed on the merits of their challenge and had met the other requirements of the preliminary injunction standard because the primary purpose of the travel ban was likely to effectuate a ban on Muslim entry. The government, by contrast, argues that the district court should have applied the more deferential standard in Kleindienst v. Mandel, an immigration case where the Supreme Court held that “when the Executive exercises this power [to exclude an alien] on the basis of a facially legitimate and bona fide reason,” the court’s would not look beyond that exercise of discretion nor balance it with constitutional interests.
The Fourth Circuit majority explains that Mandel only constitutes “the starting point” in its analysis and is “still subject to important constitutional limitations.” Specifically, the court points out that Mandel imposes a high burden on the plaintiff in that they must overcome the government’s demonstration of a “facially legitimate” (valid reason) and “bona fide” (good faith) action, because normally it would be “difficult for a plaintiff to make an affirmative showing of bad faith with plausibility and particularity.” But where good faith has “seriously been called into question,” the court concludes it should be allowed to “look behind the stated reason for the challenged action.”
The court explains that the plaintiffs “point to ample evidence that national security is not the true reason” for the E.O., including Trump’s campaign statements, Ruly Giuliani's statement that Trump asked him to find a “legal way” to create a Muslim ban, and the weakness of the revised E.O. in fulfilling its stated national security interest.
This unique historical record means that the court is, in effect, forced to make new law to handle it. As the court writes, "no court has confronted a scenario where, as here, plaintiffs have plausibly alleged with particularity that an immigration action was taken in bad faith. We therefore have minimal guidance on what 'look[ing] behind' a challenged immigration action entails."
The court decides that applying Lemon here is appropriate because of the constitutional limits on the political branches’ immigration power, the Mandel burden of proof having been met by the plaintiffs, and because “there is an obvious symmetry between Mandel’s bona fide prong and the constitutional inquiry established in Lemon. The court explains that under Lemon, the burden shifts to the government, which must prove that its action (1) has a primarily and genuinely secular purpose; (2) that its “principal and primary effect [is] one that neither advances nor prohibits religion; (3) does not foster an “excessive government entanglement with religion.”
In examining the first factor, the court explains that it must examine, and indeed cannot turn a blind eye to, the action’s “historical context.” Relying heavily on statements made by Trump both before and after his inauguration as president in public statements, website material, and interviews, as well as the text of the first executive order and other statements by those in Trump’s administration, the court concludes that what motivated both executive orders was “President Trump’s desire to exclude Muslims from the United States.” The court further clarifies that the executive order “cannot be read in isolation from the statements of planning and purpose that accompanied it,” especially due to their sheer volume, their “singular source,” and the “close connection they draw between the proposed Muslim ban” and the revised E.O.
The court then turns to address the government’s arguments. The court quickly dismisses the government’s assertions that the text of the revised E.O. is facially neutral and therefore constitutional, reasoning instead that the Lemon test exists precisely because “facially neutral government actions can violate the Establishment clause.” The court also draws on the internal DHS report knocking down the effectiveness of the E.O. as further support. And the court explains that the revised executive order’s “practical operation is not severable from the myriad statements explaining its operation as intended to bar Muslims from the United States.”
After rejecting the government’s objection to the use of “extrinsic evidence,” outside the text, the court also rejects the government’s use of McCreary County v. ACLU for the proposition that the court could only consider “the operative terms of governmental action and official pronouncements.” The courts instead interprets McCreary as permitting the courts to rely on principles of “common sense” when construing the relevant context of government action.
Finally, the court addresses the government’s contention that it should not rely upon campaign statements in its examination, since they predate Trump’s “constitutionally significant ‘transition from private life to the Nation’s highest public office,’” and therefore are “less probative than official statements” (Quinta Jurecic has examined for Lawfare how this line of thinking is “arguing for a return to the regular order and the normal landscape of judicial behavior in the form of deference” towards Trump as expressed in the presumption of regularity). The court doesn’t buy it, declining to “impose a bright-line rule against considering campaign statements.” The court explains, in response to the government’s argument that such a practice of looking at campaign statements would “encourage scrutiny of all religious statements ever made by public officials, even remarks from before they assumed office,” that it engages in a very particularized and narrow use of campaign statements based on Supreme Court precedent:
Indeed, this case is unique not because we are considering campaign statements, but because we have such directly relevant and probative statements of government purpose at all. . . . To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.
Lastly, the court emphasizes that analyzing campaign statements as part of an overall motivation inquiry is not unique to Establishment Clause cases. This type of inquiry is made in cases dealing with hiring, marriage, and voting cases. Here the court barely conceals its frustration:
The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers. We decline 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.
Based on all of the above, the court holds that the district court did not err in concluding that the plaintiffs would likely succeed on the merits of their claim.
Briefly, the court examines whether the plaintiffs are likely to suffer “irreparable harm” in the absence of a preliminary injunction. The court concludes they are because “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” The court also concludes that the “balance of equities and the public interest factors” favor granting a preliminary injunction, rejecting the government’s invocation of national security as a “silver bullet that defeats all other asserted injuries” and reasoning that national security necessarily includes “defending those values and ideals which set this Nation apart,” the “most cherished” of which is the First Amendment.
As a final matter, the court concludes that the nationwide scope of the district court’s preliminary restraining order, which “should be carefully addressed to the circumstances of the case,” was not an abuse of discretion. Given that (1) the plaintiffs were dispersed throughout the United States; (2) immigration laws should be enforced uniformly (Texas v. United States); and (3) applying the injunction only to the plaintiffs “would not cure the constitutional deficiency,” the court felt the district court had acted properly. However, the court did lift the injunction as to the president himself based on the government’s reliance on Mississippi v. Johnson.
The court thus substantially upheld the district court’s preliminary injunction against Trump’s travel ban.
Judge Traxler concurs with the majority’s Establishment Clause holding. He also concurs in lifting the injunction on Trump.
Judge Keenan (joined by Thacker)
Judge Keenan writes a separate concurrence, disagreeing with the Plaintiffs claim that Section 1152(a)(1)(A), which prohibits discrimination on the basis of nationality in issuing immigration visas, acts as a limitation on Trump’s authority under § 1182(f). She finds that the actual language of § 1152(a)(1)(A) addresses immigration visas, not entry to the United States. This is the one part of Keenan’s analysis that Judge Thacker does not join in.
Despite this, Judge Keenan concludes that the Plaintiff’s request for injunctive relief succeeds on the grounds that the E.O. does not comply with the actual text and language of Section 1182(f), which permits a president to suspend entry to the U.S. if he finds that the entry of an alien would be—not may be—detrimental to the country’s national interests. Judge Keenan determines that the text of the E.O., in particular Section 2(c), does not identify a basis for a ban on 180 million nationals of six different countries; as she alluded with her questions during oral argument, she concludes there is no basis to believe that their entry to the United States would be detrimental, as required by the terms of the statute. Keenan finds the government’s different rationales that Section 2(c) meets the statutory preconditions for lawful exercise of Trump’s power under Section 1182(f) insufficient including that the government is not sure whether the banned individuals would present a risk, that the E.O. describes a process to study if the aliens would be detrimental to the country, and the government’s reliance on the exclusion of the specified countries from the Visa Waiver Program.
Judge Wynn writes a solo concurrence to assert that the Plaintiffs’ claim, that Section 2(c) exceeds Trump’s authority, would likely succeed on the merits due to the fact that the government relies on national origin as a “proxy for discrimination based on religious animus.”
Judge Wynn kicks off by criticizing the invidious discrimination that the government has “shrouded in layers of legality,” harkening back to Dred Scott and Korematsu. Judge Wynn then asks whether “Congress, in enacting Section 1182(f), authorized the President to deny entry to a class of aliens on the basis of invidious discrimination.” In answering this question, Wynn raise two canons of statutory construction. First, when a Congressional Act raises serious doubt to the constitutionality of the Act, a court must construe the statute in a manner that avoids constitutional problems where an alternative interpretation of the statute is “fairly possible.” Second, courts are not permitted to construe a broad generalized delegation of authority by congress to the executive to allow the executive branch the authority to “trench upon fundamental rights” without an explicit statutory statement that gives the executive that authority.
Judge Wynn concludes that if construed broadly, § 1182(f) could authorize Trump to infringe on fundamental rights, a distinction that is forbidden by Constitutional values set forth in the First, Fifth, and Fourteenth Amendments; limitations that have also been repeatedly upheld by the Supreme Court. The result, Wynn finds, could lead anywhere:
The President could deny entry to aliens of a particular race solely based on the color of their skin; The President could deny entry to citizens of a particular nation solely on the basis of their place of birth; The President could deny entry to adherents of a particular religion solely because of their subscription to that faith; Or, as this Court concludes the President likely did here, the President could rely on one form of invidious discrimination—discrimination based on national origin—to serve as pretext for implementing another form of invidious discrimination—discrimination based on religion.
Moreover, although the government has broad authority to control immigration, in particular in times of war, the Supreme Court has placed on the government important constitutional limitations, especially when that authority falls on citizens and other individuals entitled to constitutional protections. In this case, Judge Wynn, argues that the U.S. citizens are impacted by the messaging that the government promulgated by way of the E.O., including that Muslims are ‘outsiders, not full members of the political community’ and the feeling that they are inferior as to their status in community.’
Judge Wynn concludes that because the government’s broad reading of the § 1182(c) raises serious constitutional concerns, the court must reject that interpretation in the absence of clear congressional intent to authorize such discrimination.
In order to ascertain congressional intent, a court must look to the “plain meaning” of Section 1182(f), by looking to the language itself as well as the specific and broader context of the statute. Judge Wynn finds that there is no explicit or in fact, after reviewing congressional intent of various portions of text in the INA, implicit statements that Congress “intended to authorize the President to deny entry to aliens based on invidious discrimination.”
Judge Thacker writes separately for three reasons. First, Judge Thacker prefers to not consider statements made by Trump during his campaign and assess rather only statements made after Trump took the oath to “preserve, protect and defend the Constitution” and began operating under the executive powers of Article II. Thacker seems to accept the government’s argument under McCreary that the oath of office is a “profound transition.”
Second, he determines that Trump’s statements and sentiments after he was inaugurated are enough for the plaintiffs to establish the likelihood of success on the merits on their Establishment Clause claim. Judge Thacker bases this conclusion on “the morphing of the First Executive Order (“EO-1”) into EO-2, the statements of presidential representatives and advisors, the lack of evidence supporting a purported national security purpose, and the text of and logical inconsistencies within EO-2.”
Third, he finds that the plaintiffs demonstrated a likelihood of success on the merits of their statutory claim that Section 2(c) violates § 1152(a)(1)(A) of the INA. Judge Thacker rejects the government’s claim that § 1152(a)(1)(A) and § 1182(f) do not conflict as nonsensical and concludes that the prohibition on nationality-based discrimination set forth in § 1152(a)(1)(A) modifies the broader and older § 1182(f) according the President broad discretion to limit entry.
Judge Niemeyer (joined by Shedd & Agee)
Judge Niemeyer asserts that the majority makes three errors. First, Niemeyer believes that the court misapplied the Supreme Court’s decision in Mandel by recognizing the facial legitimacy of the E.O. but not its facial bona fides. Put differently, Niemeyer seems to interpret the “facially” descriptor in the Mandel standard as modifying both the “legitimate” and “bona fide” prongs. He concludes that the E.O. on its face is lawful, and no inquiry into purpose is permitted.
Second, Niemeyer criticizes the majority’s reliance on Trump’s campaign statements as part of its analysis of executive purpose. Beginning his analysis with the Supreme Court’s warning in McCreary against “judicial psychoanalysis of a drafter’s heart of hearts,” Niemeyer opposes use of campaign statements as an unprincipled exercise that permits a court to strike down any executive action that it disagrees with. Niemeyer also determines that the majority’s reliance on campaign statements will “chill political speech directed at voters seeking to make their election decision” (what the majority finds would be a welcome restraint).
Third, Niemeyer finds that the majority radically extended Supreme Court Establishment Clause precedents by applying the Establishment Clause to matters of national security and foreign affairs, something that the Supreme Court has never done. Judge Niemeyer believes that the majority’s new rule will become a “sword for plaintiffs challenge of facially neutral government actions, particularly those affecting regions dominated by a single religion.”
Judge Shedd (joined by Niemeyer & Agee)
Judge Shedd, explaining that “[national security is a complex business with potentially grave consequences,” defends the government’s interest in combatting terrorism as “an urgent objective of the highest order” per Holder v. Humanitarian Law Project. Shedd accepts the government’s arguments about the president’s (and his advisor’s) responsibility to protect the nation and the need for due deference to the political branches’ decision-making (especially in immigration cases), and also that Section 2(c) of the E.O. constitutes only a “temporary pause” in immigrant and nonimmigrant entry.
Judge Shedd also takes the district court to task, declaring that “the shortcomings in the district court’s fact-finding are obvious,” since it is based on campaign statements, statements of former government officials (“many of whom openly oppose this President”), and its “misplaced conclusion” that Trump did not submit the order for inter-agency review. Shedd also criticizes the district court for faulting the president for not explaining why the travel pause is necessary without access to intelligence information.
Undoubtedly, protection of constitutional rights is important, but there are often times in the federal system when constitutional rights must yield for the public interest. . . . Today’s decision may be celebrated by some as a victory for individual civil rights and justice, and by others as a political defeat for this President. Yet, it is shortsighted to ignore the larger ramifications of this decision. Regrettably, at the end of the day, 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.
Judge Agee (joined by Niemeyer & Shedd)
Judge Agee dissents on the ground that the plaintiffs have no standing to bring their Establishment Clause claim. Judge Agee argues that the district court erred in finding that Plaintiff Meteab had standing to challenge Section 2(c) of the E.O. because Meteab’s brothers were refugees and Section 2(c) does not apply to refugees. He also asserts that stigma is insufficient to confer standing on Doe #3, and that Doe #1 does not have standing because the feared denial of a visa for his wife is too vague and speculative to meet the standard of an actual or imminent harm.
Judge Agee concludes that the plaintiffs’ pleadings only show alleged personal perception of stigmatization, which does not meet the standard of a cognizable injury, and could allow future plaintiffs to pursue claims based on negative feelings about government actions. He would have vacated the preliminary injunction.