The 4th Circuit opinion keeping the Muslim Ban blocked – with concurrences and dissents – is a stage for a final showdown before the Supreme Court. A full panel of 13 judges ruled, 10 in favor of upholding the block on the ban, but not all for the same reasons, with 3 dissenting.

As one of the volunteer airport lawyers at Dulles, I was initially very excited yesterday to hear the ruling. After reading everything, though, I’m much more reserved, and not as excited. Because if (when?) this goes before the Supreme Court, the fragmented spectrum of rulings from the Court provides enough material for 5 Supreme Court justices to allow the travel ban to be reinstated.

I hope I am wrong. The 9th Circuit still has to rule. But the constitutional question on the limits of executive power has, to my knowledge, never been tested in this particular way. Perhaps the Supreme Court will deny certiorari and not take it up, but it likely will, eventually. And it should. Because there will be more bans, more walls, and more raids.

Analysis of Fourth Circuit Opinion

The majority opinion boils down to the words “bona fide.” It is based on these words that the court was able to choose the appropriate Constitutional spotlights, with appropriate intensity and wattage, to strike down the government’s argument.

After explaining the procedural posture of the case, the Court found that review of the Establishment Clause argument was appropriate. Next, it found at least one plaintiff to have standing (the legal right to bring the lawsuit) and rejected government arguments attempting to shield the order from judicial review.

Next was the question of what constitutional test – spotlight – to choose. The starting point was the Mandel test – which asks only if the action was “facially legitimate and bona fide.” The court found while the second Executive Order (EO-2) was facially legitimate, it wasn’t bona fide, because of the mountain of evidence of religious animus, both pre- and post-inauguration.

The Court elegantly joined two lines of cases to find that because EO-2 wasn’t bona fide, it could apply the much stronger Lemon test. Lemon allowed the Court to peer behind the order and consider all the statements made by Trump and his advisors. While there may have been a facially legitimate/secular purpose of national security, the primary purpose of EO-2 was to discriminate against Muslims, and therefore, it fails. Of note: the Court was careful to note that this conclusion only made sense in this highly unique set of circumstances, where you had a single actor (Trump) saying he wanted to discriminate, and then going ahead and more or less immediately doing it.

Concurring opinions expanded the findings – no doubt to be relied on by the liberal Supreme Court justices like Kagan, Sotomayor, and Ginsberg. For example, one concurring opinion found that Trump overstepped his authority in even enacting such a ban whether the Establishment Clause was violated or not, because there had to be a “finding” that banning entry was in the national interest, and he made no such credible finding.

Judge Neimeyer’s dissent, on the other hand, predictably found that the majority completely misread Mandel, and there was no justification to apply strict tests like the Lemon. In other words, they chose much dimmer (and fewer) spotlights.

Judge Shedd’s dissent went further, and found that the courts shouldn’t even question national security measures. For all intents and purposes, Shedd relied on one of the Supreme Court’s most odious and repudiated (but still unreversed) decisions: Korematsu (the Japanese internment case). And Judge Agee went even further and found no plaintiff even had the right to bring the suit in the first place, neatly avoiding the entire messy Establishment Clause fight altogether. 

Between 13 judges, then, battle lines were drawn.

Why I’m Worried

Niemeyer’s dissent is well-reasoned. True, he may have overstated the majority opinion somewhat, in that it’s not that the majority created a new rule of law (read: spotlight), it comes down to whether Mandel allows that spotlight once you find that the EO isn’t bona fide. But Niemeyer is not clearly wrong – and hence my subdued tone. I think Shedd and Agee were wrong: standing clearly exists, and relying on Korematsu in substance would be a legacy-destroying move. 

The bottom line, however, is that the majority opinion did go through some legal maneuvering to turn on the Lemon spotlight. I believe it was correct, but I’m not sure the Supreme Court will agree. There is far too much precedent mandating a hands-off deferential approach to matters of immigration and national security, and this EO is both.

A justice like Alito is a staunch supporter of religious freedom, but I’m not convinced he will do so in the immigration/national security context. Thomas will likely uphold the Muslim ban, and all the tools are there in Niemeyer’s opinion to give reason for Chief Justice Roberts to uphold it as well. Justice Kennedy isn’t much a fan of the Lemon test, though he is troubled by religious animus. Justice Breyer believes in deference, and is acutely sensitive to judicial overreach, though he will probably join the liberal wing of the Court in a case like this. And while recently appointed Justice Gorsuch is new, his originalist and literalist constitutional philosophy will gravitate towards upholding the ban.

So if Roberts and Kennedy uphold the ban, a 5-4 decision striking the Fourth Circuit’s decision is a very real possibility. I sincerely hope the Ninth Circuit, in its upcoming ruling, picks apart Niemeyer’s dissent, because the majority opinion of the Fourth Circuit didn’t.

Takeaways

First, it was important that to make out an Establishment Clause violation, “feelings of marginalization” suffice to show injury. That means it becomes *incumbent* on us all, individually and collectively, not to let invidious discrimination slide. If we don’t record it in public consciousness, the courts will have no measure to find injury. 

Second, take interest in who our judges are. Collectively, our panoply of judges is more important than who the President is.

Third, be proud of our Constitution and doctrine of separation of powers. I would be remiss if I didn’t express what it felt like to read this cold, calculated legal analysis that protected the rights of my brothers and sisters in faith. After seeing examples of state-sanctioned discrimination in legal regimes around the world, I was filled with a sense of pride in our system that protects the rights of everyone.

Fourth, as one of the volunteer airport lawyers in the wake of these travel bans – holding our elected officials to the test is what made today’s ruling possible. We fought for travelers from 7 countries, but were protecting something much larger that was under attack. Plaintiffs were found, and a legal strategy emerged. Many things had to fall into place in exactly the right way to make today’s ruling possible.

Fifth, this isn’t over. The administration is driven by an ideology. Even if they lose this battle, they are busy stacking the judiciary with judges of their liking, and building narratives correlating immigration and Muslims with crime and terrorism. Two years from now, the exact same ban could resurface, and the result would be opposite. 

​No doubt, this is a stress test on our system of government. So far, it seems to be holding up. Law is the glue that holds our society together, and the disintegration of the rule of law will affect all of us, whether we like it or not.

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