IT TOOK the Fourth Circuit Court of Appeals 70 days to issue its ruling in International Refugee Assistance Project (IRAP) v Trump, a challenge to Donald Trump’s third attempt to ban travel from countries he deems threatening to America. We now know what took the 13 judges so long: the decision, released on February 15th, includes eight opinions spanning 285 pages. Travel ban 3.0 remains a poorly masked reflection of the president’s disdain for Muslims, the court found by a 9-4 vote. Contempt for and irrational fear of a religious group cannot be squared, Chief Judge Roger Gregory wrote, with the First Amendment’s bar on religious discrimination.
The rebuke to Mr Trump follows a ruling from the Ninth Circuit Court of Appeals last month. Unlike the Ninth Circuit decision, which limited its analysis to whether the president’s travel rules exceed his authority under immigration laws, the new ruling represents a stinging indictment of Mr Trump’s “own words”. Examined in context, the judges found, the president’s speeches and Twitter messages paint his entry ban as “unconstitutionally tainted with animus toward Islam”. Take a tweet from August 17th 2017, for example, in which Mr Trump “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!’” (The story on which this terrorism-deterrence strategy was based never actually happened, but Mr Trump apparently would like to emulate it.) Or consider November 29th, 2017, when Mr Trump “retweeted three disturbing anti-Muslim videos” posted by a group that calls Islam “alien and destructive”. Chief Judge Gregory cites a press aide to the president, who explained that the videos were consistent with Mr Trump’s sentiments about “security issues for years now, from the campaign trail to the White House”.
Evidence of presidential scorn for Islam is amply documented in the majority opinion. “When we compromise our values as to some”, Chief Judge Gregory wrote, “we shake the foundation as to all”. But in dissent, Judge Paul Niemeyer complains that his colleagues have invented a “new and totally unprecedented rule of evidence that is fraught with danger and impracticality”. Campaign statements and tweets are “often short-hand for larger ideas” and are “susceptible to multiple interpretations”. A slippery slope awaits: judges hunting for evidence of an illicit presidential motive could nose through “statements from a previous campaign” or even “from college”. A president’s policies should not be hamstrung, the main dissent suggests, by an alcohol-tinged insult he uttered at a party decades ago.
That may be, but the majority opinion is far from a cherry-picked list or a gotcha exercise reaching back to Mr Trump‘s student days at the University of Pennsylvania. The ruling recites a litany of tweets since Mr Trump took office that disparage Muslims and Islam. And it’s not as if Mr Trump vacillates between criticising Muslims and praising them. His message is consistent and recalls the spirit of his plea as a candidate in 2016 for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on”. Candour over his likes and dislikes is a well-ingrained trait of the 45th president, and nothing he has tweeted suggests that anything but fear and disdain characterise his feelings toward Muslims. The “taint” of that attitude mars Mr Trump’s restrictions on travel from eight countries, six of which are majority-Muslim, but the taint could have been removed, Chief Judge Gregory noted, if only he had “ceased publicly disparaging Muslims”. Mr Trump did no such thing.
For all the ink spilled in these opinions, a stay on the injunctions issued by the Supreme Court in December means the Fourth Circuit ruling will have no immediate effect. Travel ban 3.0, for now, is still (with few exceptions) keeping people from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen from traveling to America. But when the justices take up the question in late April—with a decision coming by July—they will have plenty of reading material to consider from their fellow federal judges.
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