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You're Hired: Tracking the Trump Administration Transition - May 31, 2017
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This is the May 31, 2017, edition of an email sent from November 2016 to September 2017 that covered Donald Trump's presidential transition, cabinet appointees, and the different policy positions of those individuals who may have had an effect on the new administration. Previous editions of "You're Hired" can be found here.
Last week, the Fourth Circuit upheld a lower court injunction against President Donald Trump’s March 6 executive order seeking to temporarily suspend entry into the United States from six Middle Eastern and African countries, among other provisions.
Today, we will look at that executive order, how it reached the Fourth Circuit, the court’s decision, and what comes next.
The executive order
What did Trump’s March 6 executive order seek to do?
On March 6, 2017, Trump issued the immigration executive order, Protecting The Nation From Foreign Terrorist Entry Into The United States, to rescind and replace his January 27 executive order of the same name which had been successfully challenged in court.
This executive order suspended entry into the United States for 90 days for individuals from Syria, Iran, Libya, Somalia, Sudan, and Yemen. The order also suspended refugee admissions to the United States for 120 days while the admissions process was reviewed for additional national security measures to be implemented.
Differences between the January 27 and March 6 executive orders included:
- Removing Iraq from the list of countries subject to the entry suspension;
- Specifying that current visa holders were not affected;
- Removing the indefinite suspension on admitting Syrian refugees; and
- Allowing entry for refugees who had already been granted asylum.
The order was set to go into effect on March 16, 2017.
Why was the March 6 executive order challenged?
The American Civil Liberties Union (ACLU) filed the lawsuit heard by the Fourth Circuit on behalf of the International Refugee Assistance Project and other plaintiffs. Originally, the ACLU asked a federal district court in Maryland to block the January 27 order. It filed an amended complaint on March 10 asking the court to block the March 6 order in its entirety.
The ACLU argued that the March 6 order amounted to religious discrimination and violated the First and Fifth Amendments to the U.S. Constitution, as well as the Religious Freedom Restoration Act, the anti-discrimination provisions of the Immigration and Nationality Act, the Refugee Act of 1980, and the Administrative Procedure Act.
How did the federal district court rule?
On March 16, federal judge Theodore Chuang, an Obama appointee, granted a nationwide preliminary injunction against the portion of the executive order that would have prevented Iran, Libya, Somalia, Sudan, Syria, and Yemen nationals from receiving visas. Chuang highlighted public statements made by Trump to demonstrate that there was evidence of religious purpose in suspending travel from these countries.
He declined to grant a preliminary injunction against the portion of the executive order that would have temporarily banned refugee admission for 120 days.
The U.S. Department of Justice appealed the case to the Fourth Circuit.
The Fourth Circuit
What is the Fourth Circuit?
Established in 1891, the United States Court of Appeals for the 4th Circuit, often referred to as the Fourth Circuit, is one of the thirteen federal appellate courts. It has appellate jurisdiction over cases originating from any of the district courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Rulings of the court are petitioned to the Supreme Court of the United States for appeal.
Who sits on the Fourth Circuit?
There are 15 active judges on the Fourth Circuit appointed by five presidents: Ronald Reagan (R), George H.W. Bush (R), Bill Clinton (D), George W. Bush (R), and Barack Obama (D).
- Steven Agee (W. Bush)
- Albert Diaz (Obama)
- Allyson Duncan (W. Bush)
- Henry Floyd (Obama)
- Roger Gregory (Clinton)
- Pamela A. Harris (Obama)
- Barbara Keenan (Obama)
- Robert King (Clinton)
- Diana Motz (Clinton)
- Paul Niemeyer (H.W. Bush)
- Dennis Shedd (W. Bush)
- Stephanie Thacker (Obama)
- William Traxler (Clinton)
- Harvie Wilkinson (Reagan)
- James Wynn (Obama)
Who heard the case?
Typically, in federal appellate courts, a randomly assigned three-judge panel would consider a case before it reached the full bench on appeal. On April 10, however, the Fourth Circuit announced that its full bench would hear oral arguments en banc in the first instance on May 8. Duncan and Wilkinson recused themselves, leaving 13 of the 15 judges to hear the case.
Did any states file amicus briefs?
The attorneys general of 16 states and the District of Columbia filed an amicus brief—a brief submitted to the court by a non-litigant with a strong interest in the subject matter—in support of the injunction. The brief argued that the purpose of the executive order was "to implement as nearly as possible the Muslim-travel ban that President Trump promised as a candidate."
The brief also stated that all the joining parties would be adversely impacted by the order and would suffer irreparable harm should it go into effect. The following states joined the amicus brief:
- California
- Connecticut
- Delaware
- Illinois
- Iowa
- Maine
- Maryland
- Massachusetts
- New Mexico
- New York
- North Carolina
- Oregon
- Rhode Island
- Vermont
- Virginia
- Washington
What happened at oral argument?
During oral argument, the judges focused questioning on whether the ban was a neutrally applied exercise of presidential authority over border security or whether President Trump's statements made as a candidate provided evidence of animus towards Muslims that rendered his order discriminatorily and illegally applied to Muslims.
What did the Fourth Circuit rule?
Last Thursday, the Fourth Circuit upheld the district court's injunction that blocked the portion of the executive order that would have prevented Iran, Libya, Somalia, Sudan, Syria, and Yemen nationals from entering the country.
The Fourth Circuit ruled that the motivation of the executive order was religious in nature and therefore violated the Establishment Clause, which prohibits the establishment of religion or preference for one religion over another.
In making this determination, the court took into account public statements Trump made regarding Muslims, both during the 2016 presidential campaign and following his election. The court found that while the reasons for the executive order appeared to be legitimate on its surface—national security, for example—they were invoked with bad faith, “as a pretext for its [the order's] religious purpose.” As a result, the Fourth Circuit ruled that the district court had properly issued the injunction.
Three judges—Agee, Niemeyer, and Shedd—dissented. They questioned the court’s evaluation of Trump’s statements on the campaign trail. Niemeyer wrote in his dissent, “The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds—one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.”
What comes next
Can the decision be appealed to the Supreme Court?
Yes, and the Trump administration has already indicated that they will do so.
Attorney General Jeff Sessions said in a statement: “The Department of Justice strongly disagrees with the decision of the divided court, which blocks the President’s efforts to strengthen this country’s national security. … 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 to the United States. This Department of Justice will continue to vigorously defend the power and duty of the Executive Branch to protect the people of this country from danger, and will seek review of this case in the United States Supreme Court.”
A decision is pending in a lawsuit in the Ninth Circuit, which has appellate jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. That lawsuit is broader, challenging both the executive order’s temporary suspension of visas for the covered countries and the refugee admission program.
Read more about Trump’s March 6 executive order on immigration.
See also
- You're Hired: Tracking the Trump Administration Transition
- Donald Trump presidential transition team
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