Motivation

Fourth Circuit finds racist motivation in travel ban

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The U.S. Supreme Court building in Washington in October 2015. (Jonathan Ernst/Reuters)

As the White House issues threats to veto an immigration bill to protect the Deferred Action for Childhood Arrivals (DACA) program, the Fourth Circuit became the second appellate court to strike down President Trump’s third travel ban. The ACLU, which has repeatedly challenged Trump’s bans declared in a written statement:

President Trump’s third illegal attempt to denigrate and discriminate against Muslims through an immigration ban has failed in court yet again. It’s no surprise. The Constitution prohibits government actions hostile to a religion.

Like the previous versions, this latest ban seeks to block immigrants and temporary visitors from six Muslim-majority countries — in this iteration, Chad, Iran, Libya, Somalia, Syria, and Yemen. It also includes North Koreans and certain Venezuelan government officials. In October, a Maryland federal district court ruled against the ban taking full effect, prompting the government’s appeal.

The ACLU acknowledged that the ban will remain in effect until litigation has exhausted appeals. (“Today’s Fourth Circuit decision follows one by the U.S. Court of Appeals for the Ninth Circuit, which ruled against the latest ban on statutory grounds on December 22, and a decision the next day by a U.S. district court on a separate presidential order that was the latest attempt to ban refugee admissions. Under a December 4 order from the Supreme Court, however, the ban on immigrants and temporary visitors is in effect as the challenges are litigated.”)

The court found:

In the extraordinary case before us, resolution of that question presents little difficulty.  . . . Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s [the third executive order] purpose is driven by anti- Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2 addressed only to majority Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his  advisors described as having the same goal as EO-1 and EO-2.

The court acknowledges that it may not be fair to hold the president to campaign rhetoric. However, the court wryly observes, “We need not do so because the President’s inauguration did not herald a new day.” The court concedes that the racist taint might not be permanent. “President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims.” Ouch.

In  one of multiple concurrences, two judges made a different argument. “The Proclamation has no historical precedent. The President interprets the INA in a way that no other administration has in the statute’s sixty-five year existence and attempts to enact , by decree, the type of immigration policy traditionally reserved for Congress. I would hold that the Proclamation exceeds the scope of authority delegated by the INA and that it was unlawfully issued.”

It is far from clear that the Supreme Court will sustain the 4th and 9th Circuits’ decisions. Nevertheless, we find it striking that two federal appellate courts have essentially invalidated the third ban because Trump wasn’t adept enough to keep his racist anti-Muslim views to himself. But how could he? Race was and remains, as the Senate mulls relief for the “dreamers,” the central bond between Trump and his aggrieved white base. Lacking any self-control, Trump cannot stop drinking from the well of anti-immigrant and anti-Muslim sentiment. That is who he is. The courts think this is not what America should be.

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