In upholding the block on the travel ban May 25, the appeals court ruling stated that Congress granted the president broad power to deny entry to aliens, but the power was not absolute. Trump tweaked the order after the U.S. Court of Appeals for the 9th Circuit refused to reinstate the ban. The 4th Circuit Court of Appeals ruled today that it should be kept on hold.
Trump's March 6 executive order sought to ban people from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for 90 days and to bar all refugees for 120 days.
And the 4th Circuit went right along. The government could ask the court to take emergency action to let the ban take effect while the litigation plays out.
The 4th Circuit's decision upholds previous rulings by lower courts, and indicates that the case will now be headed to the Supreme Court if the court elects to take the case.
The court found that the ban, which targeted people from several Muslim-majority nations, violated the Establishment Clause of the First Amendment, which prevents the government from establishing religious orthodoxy or favoring one religion over another.
The court further said it could not say that the government's security concerns outweighed the plaintiffs' concerns about discrimination. Both courts concluded that Trump's own words, and those of his surrogates, tainted the executive order with unconstitutional animus against a religious group.
Unlike the initial travel band issued in January, there were no specific references to religion in the revised one. "But the precedent set by this case for this court's role in reviewing the president's power at the borders will long transcend this debate and this order and this constitutional moment". J.A. 339. These statements are the exact type of "readily discoverable fact [s]" that we use in determining a government action's primary objective.
However, the administration countered this by claiming the countries were chosen due to their terrorism risks, not because they are predominantly Muslim. All three judges were appointed to the 4th Circuit by Republican presidents.
"We need not probe anyone's heart of hearts to discover the goal of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms", he added. Given the nature of the case, however, with interests in national security at odds with religious freedom, the case could end up before the high court no matter what.