In a fresh setback for the administration, a federal court in Richmond, Va., said the ban “drips with religious intolerance, animus and discrimination.”
WASHINGTON — A federal appeals court refused Thursday to reinstate President Trump’s revised travel ban, saying it “drips with religious intolerance, animus and discrimination.”
The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was a fresh setback for the administration’s efforts to limit travel from several predominantly Muslim countries.
Attorney General Jeff Sessions said the administration would appeal the decision to the Supreme Court.
“This Department of Justice will continue to vigorously defend the power and duty of the executive branch to protect the people of this country from danger, and will seek review of this case in the United States Supreme Court, ” Mr. Sessions said in a statement.
The court’s vote was 10 to 3. The court divided along ideological lines, with the three Republican appointees in dissent.
Writing for the majority, Chief Judge Roger L. Gregory said Mr. Trump’s statements on the campaign trail concerning Muslims showed that the revised order was the product of religious hostility. Such discrimination, he wrote, violates the First Amendment’s ban on government establishment of religion.
“Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States, ” Judge Gregory wrote. He cited, as an example, a 2015 statement calling for “a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.”
The Trump administration had urged the appeals court to ignore the statements as loose language made before the president assumed office. But Judge Gregory said the court could take account of the comments.
“The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action, ” Judge Gregory wrote.
In dissent, Judge Paul V. Niemeyer said that the majority had made a grave error in considering the comments to interpret the executive order.
“Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds, ” he wrote. “They are often shorthand for larger ideas; they are explained, modified, retracted and amplified as they are repeated and as new circumstances and arguments arise. And they are often ambiguous. A court applying the majority’s new rule could thus have free rein to select whichever expression of a candidate’s developing ideas best supports its desired conclusion.”
The administration had argued that consideration of campaign rhetoric would chill political speech protected by the First Amendment. That was not a problem, Judge Gregory said.
“To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint, ” he wrote.
The new order was an attempt to address judicial objections to the original travel ban, issued in January. The revised order’s 90-day suspension of entry from Iran, Libya, Somalia, Sudan, Syria and Yemen was more limited and subject to case-by-case exceptions. It omitted Iraq, which had been listed in the earlier order, and it removed a complete ban on Syrian refugees. And it deleted explicit references to religion.
Like the earlier order, the new one suspended the nation’s refugee program for 120 days and reduced the annual number of refugees to 50,000 from 120,000.
In his dissent, Judge Niemeyer wrote that the law did not permit judges to second-guess a president’s national security judgments.
But Judge Gregory wrote that courts had a role to play.
“Although the Supreme Court has certainly encouraged deference in our review of immigration matters that implicate national security interests, ” he wrote, “it has not countenanced judicial abdication, especially where constitutional rights, values, and principles are at stake.”
It was more than plausible, he added, that the revised order’s “stated national security interest was provided in bad faith, as a pretext for its religious purpose.”
“The government has repeatedly asked this court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers, ” Judge Gregory wrote. “We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.”
In March, federal judges in Maryland and Hawaii blocked parts of the new executive order, saying they could not ignore the remarks from Mr. Trump and his allies. “Simply because a decision maker made the statements during a campaign does not wipe them” from judicial memory, Judge Theodore D. Chuang of Federal District Court in Maryland wrote in the decision under review by the appeals court.
A second appeals court, the United States Court of Appeals for the Ninth Circuit, in San Francisco, heard arguments recently in an appeal of the Hawaii decision. That court is expected to rule shortly.
Mr. Trump issued his initial order on Jan. 27, a week into his presidency. Less than two weeks later, the Court of Appeals for the Ninth Circuit affirmed an order halting it.
Though Mr. Trump vowed to fight the ruling, he did not appeal to the Supreme Court. Instead, he issued a revised executive order. This time around, the administration will appeal, setting the stage for a major constitutional showdown.
