The federal judge in Maryland who blocked the travel ban cited comments made by Trump and his aides during the campaign and after the election as evidence that the policy was primarily motivated by the religion. It's time for the Trump administration to abandon this discriminatory policy.
But the president's power over immigration is not absolute, and several lower courts have prevented Trump from putting in place a temporary ban on travel to the U.S.by residents of Iran, Libya, Somalia, Sudan, Syria and Yemen.
To make its case that the executive orders are lawful, the government needed to prove that they are "facially legitimate and bona fide". The Justice Department lawyers also urged the court to disregard Trump's public promises to "ban" Muslim immigrants and refugees both during his campaign and after his election.
The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that (the executive order's) primary goal is religious. The countries were not chosen because they are predominantly Muslim but because they present terrorism risks, the administration says.
But Chief Judge Roger L. Gregory wrote that the government's "asserted national security interest. appears to be a post hoc, secondary justification for an executive action rooted in religious animus and meant to bar Muslims from this country".
Another federal appeals court, for the Ninth Circuit, is now reviewing the Trump order in a case that involves not only the suspension of entry of nationals of the six nations, but also a 120-day suspension worldwide against entry of any refugees. The order itself "contains no reference to religion whatsoever", Judge Paul Niemeyer wrote.
The March ban was Trump's second effort to implement travel restrictions through an executive order.
Josh Blackman, a professor at the South Texas College of Law in Houston, said he thinks the Trump factor that was central to the 4th Circuit's ruling could be less pronounced at the Supreme Court. Still, he said, "Supreme Court justices don't always vote in ideological lockstep".
The government quickly announced its intention to appeal the decision - the latest in a series of stinging judicial defeats for the Republican billionaire, who took office in January - to the Supreme Court.
Even if the 4th Circuit Court had ruled in favor of the White House, the San Francisco-based 9th Circuit Court has yet to rule on an even broader injunction by a federal judge in Hawaii.
"According to former National Security Officials, Section 2 (c) serves "no legitimate national security goal, ' given that 'not a single American has died in a terrorist attack on US soil at the hands of citizens of these six nations in the last forty years" and that there is no evidence of any new security risks emanating from these countries", the ruling states. It got rid of language that would give priority to religious minorities and removed Iraq from the list of banned countries.
MESA will continue to participate in legal action to keep the freeze on the Muslim ban for as long as it takes.
Not only can the justices then affirm or overturn the lower court's decision, they also have the ability to send the case back to the circuit for review with additional information, evidence or context. We are thrilled that the court upheld the Constitution's prohibition on actions disfavoring or condemning any religion for that principal is a fundamental protection for all of us-including MESA members.