A federal appeals court in Virginia ruled 9-4 against President Donald Trump’s third version of a ban on Muslim refugees in an executive order first issued seven days after he took office.
The three combined lawsuits on appeal challenged the executive order and proclamation as violations of the Establishment Clause, pertaining to religion, free speech and association rights under the First Amendment and equal protection and due process protections under the Fifth Amendment.
“We conclude that the proclamation is unconstitutionally tainted with animus toward Islam,” Chief Judge Roger Gregory wrote for the majority in the 4th U.S. Circuit Court of Appeals decision Thursday.
In addition, Gregory wrote, “On a human level, the proclamation’s invisible yet impenetrable barrier denies the possibility of a complete, intact family to tens of thousands of Americans. On an economic level, the proclamation inhibits the normal flow of information, ideas, resources, and talent between the designated countries and our schools, hospitals, and businesses.
“On a fundamental level, the proclamation second-guesses our nation’s dedication to religious freedom and tolerance. When we compromise our values as to some, we shake the foundation as to all,”Gregory said.
The majority concluded the trial judge acted correcting in issuing a nationwide injunction against the immigration and refugee ban from the named countries.
The 9th Circuit Court of Appeals in San Francisco, by contrast, ha ruled that President Trump exceeded the authority Congress gave him over immigration in a December ruling.
Trump initially imposed the travel ban on Jan. 27, 2017, just one week after he took office and suspended entry for 90 days to immigrant and nonimmigrant entry of aliens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. All are predominantly Muslim counties.
This was blocked by the courts and on March 6, 2017, a second order was issued that was similar to the first but eliminated Iraq from the list.
The second order was also challenged and enjoined by the courts.
Finally, on Sept. 24, 2017, Trump issued a third proclamation and order that suspended indefinitely entry of some or all immigrants and nonimmigrants from eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen.
Six of those are majority-Muslim nations with combined populations of 150 million people. The appeals court allowed the barrier to North Korean and Venezuelan immigrants to stand.
Judge Gregory was joined by Judges Diana Motz, Robert King, Barbara Keenan, James Wynn, Albert Diaz, Henry Floyd, Stephanie Thacker and Pamela Harris.
In dissent were Judges William Traxler, Steven Agee, Paul Niemeyer and Dennis Shedd.
Gregory was originally appointed by President Bill Clinton in a rare recess appointment until the 2001 Congressional session ended. Gregory became the first African-American judge on the 4th Circuit. He was later re-nominated by President George W. Bush for a permanent spot and confirmed by the Senate ina 93-1 vote.
Case: International Refugee Assistance Project v. Trump, No. 17-2231