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March 2022, Virtual
The Richmond, Va., Fourth
Circuit Court of Appeals yesterday upheld the nationwide injunction on
President Donald Trump's second executive order restricting residents from six
majority Muslim countries from acquiring visas to enter the U.S. In the
majority opinion, Chief Judge Roger Gregory wrote that the order, issued March 6, "speaks with vague words on national security but in
context drips with religious intolerance, animus and discrimination."
Attorney General Jeff Sessions has confirmed that the administration will
appeal to the Supreme Court.
Trump had revised the original executive order, calling for a 90-day suspension of visas for
nationals from six countries and eliminating Iraq from the list but retaining Iran, Libya, Somalia, Sudan, Syria and
Yemen. It also suspended the U.S. refugee resettlement program for 120 days
and reduced by more than half the number of refugees allowed into the U.S.
The Department of Justice appealed the case, originally decided by
Maryland District Court Judge Theodore Chuang, to the Fourth
District Court. Arguments were heard on May 8 by a 13-judge panel. A hearing
before the full panel of judges was a departure from a three-judge panel that
would typically hear such cases. The 10-3 decision split directly down
political affiliation, as the court's 10 Democrat-appointed judges joining in
the majority opinion and three Republican-appointed judges dissented.
[The executive order issued on March 6] speaks with vague words on national security, but in context drips with religious intolerance, animus and discrimination."
The "context" referenced in Gregory's majority opinion
included campaign statements made by then-presidential candidate Trump, as well as
statements made both by Trump and his surrogates since he took office Jan. 20. These statements supported the court's conclusion that the second executive
order—as well as the original order issued Jan. 27—were constructed as an
attempt to make good on campaign promises to implement "a total and
complete shutdown of Muslims entering the United States," as outlined in
Trump's Statement on Preventing Muslim Immigration, which was available on his campaign website until it was removed just prior to May 8, when Fourth District Court heard the oral arguments in the case.
Gregory listed televised interviews and statements made
at political rallies that, in the court's view, indicated the true intentions
of the executive order, including a rally statement in which Trump called the second
order a "watered-down version" of the first order and a televised
interview with former New York City Mayer Rudy Giuliani, who told Fox News that Trump had asked
him to devise an immigration ban within the bounds of legality. The court
leaned on this line of external context to uphold the lower court's ruling that
the executive order potentially violated the Establishment Clause of the Constitution,
which prohibits the government from passing laws that establish a state
religion but also prohibits preferring any one religion over another.
The Ninth Circuit Court of Appeals in San Francisco is reviewing a similar but slightly broader injunction against the travel ban, originally decided by a district court in Hawaii and appealed in
early March. Known by many conservatives as the "nutty Ninth" for its liberal-leaning rulings, the San Francisco court is widely expected to uphold the lower
court's injunction of the ban. Maryland's Fourth Circuit Court has a
historic reputation as conservative court friendly to national security cases. Under
Obama, the court turned sharply toward diversity and a more liberal bent, making it
less of a bellwether for cases that rise to the Supreme Court.
In a dissenting opinion, Judge Paul Niemeyer argued that
campaign statements were “shorthand for larger ideas” and could not be used as
context or to establish intent. “Because of their nature, campaign statements
are unbounded resources by which to find intent of various kinds,” he wrote.
As the case heads to the Supreme Court, eyes will be on Neil Gorsuch,
President Trump's newly appointed justice. The vacancy on the bench as
the original executive order marched through the appeals process was
undoubtedly a powerful motivation for the Trump team to abandon the
first order and begin again, knowing that a later Supreme Court hearing likely would include a Trump-appointed justice.
Immigration concerns are high
on the list of anxieties for international travelers entering the U.S., as evidenced by a recent American Express Global Business Travel/Association of Corporate Travel Executives survey of 239 travel managers showed that 54 percent said travelers
have expressed growing worry about traveling to the U.S. as changes to
visa requirements and immigration policies loom. Trump's rumored expansion of
the electronics ban, which could hit whenever, has more travelers and travel
managers worried about productivity.
“Our members told us the travel bans were
bad for their businesses, bad for their travelers and bad for jobs in the
travel industry," said ACTE executive director Greeley Koch. "These
policies created uncertainty for not only business travelers trying to come
into the U.S,, but also for those based in the U.S. traveling abroad, as it was not
clear whether they would have the correct documentation to return. We call on
the administration to create a more cohesive immigration and security policy
that takes into consideration the voices of those who are moving the U.S. economy
Business Travel Association estimated late last week that the U.S. would lose
$1.3 billion in travel-related revenue this year thanks to Trump's travel
policies. This did not include revenue from meetings-related business travel.
This was before Trump's proposed budget was released, which abolished
the Brand USA marketing initiative that since 2009 has promoted the U.S. as a
travel destination to international travelers.
According to the U.S. Travel Association, Brand
USA generated 4.3 million visitors to the U.S. from other
countries, which added $29.5 billion to the U.S. economy. Not only that, Brand
USA generates an average of 50,900 new U.S.-based jobs annually from the
increases in international travelers to the U.S. The association also pointed
out that Brand USA does not spend federal taxpayer dollars.
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