Here’s a key excerpt from the majority opinion by Chief Judge Gregory:
“As we previously determined, the Government’s asserted national security interest in enforcing Section 2(c) appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country. We remain unconvinced that Section 2(c) has more to do with national security than it does with effectuating the President’s promised Muslim ban. We do not discount that EO-2 may have some national security purpose, nor do we disclaim that the injunction may have some impact on the Government. But our inquiry, whether for determining Section 2(c)’s primary purpose or for weighing the harm to the parties, is one of balance, and on balance, we cannot say that the Government’s asserted national security interest outweighs the competing harm to Plaintiffs of the likely Establishment Clause violation.
For similar reasons, we find that the public interest counsels in favor of upholding the preliminary injunction. As this and other courts have recognized, upholding the Constitution undeniably promotes the public interest. Giovani Carandola, 303 F.3d at 521 (“[U]pholding constitutional rights surely serves the public interest.”); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” (quoting Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002))); Dayton Area Visually Impaired Pers., Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (“[T]he public as a whole has a significant interest in ensuring…protection of First Amendment liberties.”). These cases recognize that when we protect the constitutional rights of the few, it inures to the benefit of all. And even more so here, where the constitutional violation injures Plaintiffs and in the process permeates and ripples across entire religious groups, communities, and society at large.
When the government chooses sides on religious issues, the “inevitable result” is “hatred, disrespect and even contempt” towards those who fall on the wrong side of the line. Engel v. Vitale, 370 U.S. 421, 431 (1962). Improper government involvement with religion “tends to destroy government and to degrade religion,” id., encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group. “The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J. concurring). We therefore conclude that enjoining Section 2(c) promotes the public interest of the highest order. And because Plaintiffs have satisfied all the requirements for securing a preliminary injunction, we find that the district court did not abuse its discretion in enjoining Section 2(c) of EO-2.”
Here’s the Court’s entire 205-page opinion including separate opinions:http://www.ca4.uscourts.gov/Opinions/Published/171351.P.pdf
Judges Agee, Niemeyer, and Shedd dissented.
PWS
05-25-17
Although AG Jefferson Beauregard Sessions promised an immediate appeal to the Supreme Court, remember our previous discussion on the Gorsuch nomination and the Din case, Kerry v. Din, 576 U.S. ___ (2015), 4 “liberal justices” are already on record that they look at malicious intent when examining constitutionality.
And the always decisive J. Kennedy seems to be making a late career project of consider such intent. Then you add that new J. Gorsuch already concurred in addition to his own majority opinion expressing similar goals in his famous “elephant in the room” discourse. See his opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).
6 Justices seem to agree with the 4th Circuit rationale that given minimal nexus to preventing terrorism presented by Trump’s EO #2, judicial deference, specially Chevron deference is unwarranted. And do the other 3 Justices really want to be in a minority saying to posterity that as far as they’re concerned, Trump has unfettered travel ban discretion? This Supreme Court precedent is likely to be a staple in all future Constitutional law textbooks.
Seems to me that Jefferson Davis Beauregard Sessions may learn the hard way, by appealing the 4th Circuit’s 10-3 decision, the old saying to watch out what you ask for because you may get it. This Supreme Court may be ready to set some limits ASAP on Mango Mussolini. And remember that before the Supremes sing, the 9th Circuit will have ruled on its case. IS THIS A GREAT COUNTRY OR WHAT?
For clarification on my comment above regarding J. Gorsuch’s potential star turn on Trump malicious intent on travel ban EO # 2: Gorsuch asserted in the immigration case Guttierez-Brizuela that “there is an elephant in the room”. And I would argue that the “elephant” is actually the spirit of INS v. Chadha, 462 U.S. 919 (1983), where the Supreme Court ruled that the one-house legislative veto for administrative suspension of deportation grants violated the constitutional separation of powers if a Board of Immigration Appeals’ interpretation of the meaning of an immigration law, that ran contrary to the interpretation made by the courts, could be applied retroactively.
Allowing the executive branch in effect to override judicial interpretations of laws because, somehow, the BIA is the expert, Gorsuch said, “Chevron turns administrative agencies into a super court of appeals,… clearly an unconstitutional revision of a judicial declaration of the law by a political branch”. He added, “When the political branches disagree with a judicial interpretation of existing law, the Constitution prescribes the appropriate remedial process. It’s called legislation.”
I agree with Gus, Justice Gorsuch, and others that it’s time for Article III Courts to resume their proper function and decide all legal questions de novo. That’s their (one and only) business, and they have the resources and talent to do it.
They can give agencies whatever deference they choose in individual cases. We ought to strive for “best possible interpretions” not just “any possible interpretation” whch is essentially where Chevron takes us. There are simply too many inherent pro-Government biases involved in legal decision-making by “captive judges” who ultimately work for the Executive.
As an historical footnote, as a young attorney working for the legendary Sam Bernsen in the “Legacy INS” Office of General Counsel I was responsible for preparing “adverse decision reports” for Federal litigation. I spotted the Chadha case as one presenting an important issue that had been noted by the DOJ in connection with some of the legislative work I also did. I drafted the recommendation from Sam that this case be used to present the Department’s constitutional objection to the so-called “legislative veto.” And, as they say, the rest is history.
Thanks for commenting, Gus.
PWS
05-26-17
Good anecdote. Remember when government attorneys were encouraged to consider substantive due process?
If the Supreme Court reviews Travel Ban EO #2, we are probably going to see the most open “sliding scale” Supreme Court analysis a/k/a stealth mid-level “heightened scrutiny” of “means and ends” prescribed by J. Powell’s majority opinion in Mathews v. Eldridge, 425 U.S. 319 (1976), when it announced a three-part balancing test that lower courts must apply when analyzing procedural due process cases.
The 4th Circuit looked at Trump’s anti-Muslim statements as sufficiently evidencing the “animus against a politically unpopular group” (suspect classification), and invalidating whatever other government purpose were actually presented (EO #2 as both over inclusive and under inclusive). Cf Romer v. Evans, 517 U.S. 620, 634-35 (1996) (finding “animus” against a politically unpopular group ( sexual orientation); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985) (prejudice against the mentally impaired); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (prejudice against interracial marriage).