Posted by Ryan Suto on February 15, 2018 in Blog

Today the Fourth Circuit Court of Appeals issued an opinion in IRAP v. Trump, another case regarding the President’s Proclamation from last fall, popularly termed Muslim Ban 3.0.

The court has previous ruled against iterations of the Muslim Ban, and here ruled 9-4 against the Administration, holding that the Muslim Ban violates the U.S. Constitution’s First Amendment’s prohibition against the governmental establishment of religion.

While the Supreme Court has held that the Ban can remain in effect until the Court itself rules on the issue. The Court is scheduled to hear oral arguments in April. As such, instead of providing a full legal analysis of the 285-page document, here are the top 10 best quotes from the decision. 

10. The contradiction between what the Proclamation says—that it merely reflects the results of a religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s proffered purpose, and undermines the Government’s argument that its multi-agency review cured any earlier impermissible religious purpose. Pg. 52

9. In sum, the face of the Proclamation, read in the context of President Trump’s official statements, fails to demonstrate a primarily secular purpose. To the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective. Pg. 52

8. Rather, an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation—to exclude Muslims from the United States. In fact, it is hard to imagine how an objective observer could come to any other conclusion when the President’s own deputy press secretary made this connection express: he explained that President Trump tweets extremist anti-Muslim videos as part of his broader concerns about “security,” which he has “addressed . . . with . . . the proclamation.” Pg. 49

7. The President also continued to express what any reasonable observer could view as general anti-Muslim bias. In an August 17, 2017, tweet, the President endorsed an apocryphal story involving General Pershing and a purported massacre of Muslims with bullets dipped in a pig’s blood, advising people to “[s]tudy what General Pershing . . . did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” Pg. 48

6. …the President’s inauguration did not herald a new day. Rather, only a week after taking office, President Trump issued EO-1, which banned the entry of citizens of six Muslim majority countries, provided exemptions for Christians, and lacked any asserted evidence indicating a genuine national security purpose. Pg. 47

5. Here, a reasonable observer could hardly “swallow the claim” that the addition of North Korea and Venezuela to the twice-enjoined travel ban was anything more than an attempt to “cast off” the “unmistakable” religious objective of the earlier executive orders. Pg. 50

4. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.” Pg. 52

3. A reasonable observer could certainly conclude that in banning entry into the United States of 180 million Muslims, approximately 10% of the world Muslim population, EO-1 was crafted to deliver, as Giuliani said, on President Trump’s promise to “ban Muslim immigration to the United States.” … This is particularly so given that every federal judge who considered the matter enjoined EO-1, finding that it likely violated the Constitution. Pg. 47

2. The Government correctly points out that the President’s past actions cannot “forever taint” his future actions... President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims. Pg. 49

1. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. Pg. 42