May 25, 2017 (North Carolina) in a 10-3 ruling, the court has upheld the injunction on the travel ban. In a lengthy decision, the court found that the executive order was meant to target Muslims.
The legal document quotes extensively from Donald Trump and his aides during the campaign. It is at times a scathing document, critical of the administration. It is also clear in the objectives of the ban and the intent of it. The decision reads in part:
These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly.
The court told the administration that you cannot do this. It was argued on the establishment clause. The second order did not include a direct reference to religion. However, his words from the campaign and those of his associates do matter. They were used to distil the objective of the Executive Order to exclude Muslims from the United States as a religious test.
The American Civil Liberties Union (ACLU) reacted to the decision this way. They were one of the groups that argued the case.
Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project who argued the case, had this reaction:
“President Trump’s Muslim ban violates the Constitution, as this decision strongly reaffirms. The Constitution’s prohibition on actions disfavoring or condemning any religion is a fundamental protection for all of us, and we can all be glad that the court today rejected the government’s request to set that principle aside.”
Politically this is a direct assault on his campaign promises. Moreover, the Ninth Circuit, which is a far more liberal court than the Fourth Circuit, is still expected to rule. While it is a fool’s errand to try to predict court decisions, it would be a surprise if the Ninth ruled differently.
The choices for the administration are clear. They can request an en banc hearing on the Fourth, involving the full court. Or they can take this to the Supreme Court. If the Ninth Circuit rules in a similar way, the U.S. Supreme Court might let the lower court’s judgment stand.
We have also learned that Attorney General Sessions intends to take this to the United States Supreme Court.
Updated to reflect reactions