After President Trump’s first immigration-related executive order faced a number of legal losses due to its unconstitutionality, the President issued a revised travel ban in March. The revised Executive Order continues the original 90-day ban on travelers from Muslim-majority countries, but:

  • Iraq is no longer on the list of banned countries,
  • LPRs and current visa holders are exempted,
  • the indefinite ban on refugees from Syria has been replaced with a 120-day freeze, and
  • the language offering preferential status to persecuted religious minorities has been deleted.

The President hoped the revised ban would be more palatable to the American public and that the courts would find that it passes constitutional muster. Immediately, however, Democrats and immigrant rights advocates criticized it for being unconstitutional like the original ban.

Last week, the 4th Circuit Court of Appeals was the first appeals court to issue a ruling on the revised ban. The majority upheld the lower court’s injunction, stating that the revised ban is “intolerant and discriminatory” and “steeped in animus and directed at a single religious group.”

Of the 15 judges on the panel, 10 voted in favor of upholding the injunction, 3 dissented, and 2 recused themselves. The 3 dissenters felt the Court should have deferred to the Executive Branch due to the national security concern. The dissenters further noted that the injunction puts public safety at risk and hampers the Executive Branch’s ability to do its job and protect U.S. citizens.

The majority, however, held that the travel ban was unconstitutional, pointing to Trump’s campaign statements as evidence of his anti-Muslim intent. Many of those that voted to uphold the injunction wrote separately to explain their reasoning. In particular, Judge Thacker wrote separately to express her disagreement with the majority’s process of taking into account campaign statements; however, she agreed that the ban is unconstitutional.

Attorney General Jeff Sessions has vowed to appeal the decision and bring it to the Supreme Court. He argues that issuing and implementing the revised travel ban is within the power of the Executive Branch, given that it implicates national security.

The next appeals court to consider the revised travel ban is the 9th Circuit. A decision should be issued soon.

 

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