Remember Donald Trump's Muslim ban? The original executive order failed spectacularly in the courts, prompting the president to throw a tantrum questioning the legitimacy of the American judicial system, and the president's legal team to scramble in the hopes of finding a comparable policy that could pass court muster.At least for now, that effort has failed, too.
A federal appeals court Thursday upheld one of two bans on enforcing President Donald Trump's executive order restricting travel from six predominately Muslim countries.The Fourth Circuit Court of Appeals, based in Richmond, Virginia, voted 10-3 to uphold a ruling by a federal judge in Maryland who declared in March that the president's revised travel order amounted to unconstitutional religious discrimination.
The ruling, which is available in its entirety here (pdf), doesn't pull any punches. The 4th Circuit -- hardly the nation's most progressive -- found that Trump's order "in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination."The ruling added, "Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles -- that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation."Later, the court's majority explained, "Invidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination. We have matured from the lessons learned by past experiences documented, for example, in Dred Scott and Korematsu. But we again encounter the affront of invidious discrimination -- this time layered under the guise of a President's claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their nation of origin. Laid bare, this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims."As was the case in the previous rulings on the policy, it was Trump and his pre-election rhetoric that once again doomed his policy. If you're not inclined to read the whole ruling, just CTRL-F for the word "campaign" to see just how often the 4th Circuit referenced Candidate Trump's explanation for the purpose of his Muslim ban.In recent months, when the White House loses a big case, the president launches an attack on the judiciary. With any luck Trump, distracted by developments in his overseas trip, will be more restrained today.As for the underlying policy, it's likely the administration will appeal the ruling and continue to push for a Muslim ban, but given the reception in the courts, Trump World is probably better off giving up and moving on.