Trump travel ban: White House appealing to supreme court after block upheld

A federal appeals court has ruled against reinstating Donald Trump’s revised travel ban – marking yet another major setback for the administration’s attempts to curb immigration from six Muslim majority countries.

The US attorney general, Jeff Sessions, later confirmed that the administration would appeal the ruling to the supreme court.

The Virginia-based fourth circuit of appeals on Thursday upheld a March ruling from a Maryland district court, which found grounds that the ban violated the equal protection clause of the US constitution. In a rare move, the court had granted a full hearing earlier in the month, meaning 13 judges had heard arguments. The ruling was a 10-3 majority.

The revised ban has also been blocked with an even broader injunction by a federal court in Hawaii, meaning the administration has been fighting in two separate appeals courts.

As the ninth circuit has yet to rule on the Hawaii decision, even if the fourth circuit had ruled in favour of the Trump administration the president would not have been able to implement the ban.

Trump has previously vowed to fight the case to the end .

Trump’s revised order, which temporarily barred new visas from Libya, Somalia, Sudan, Iran, Yemen and Syria, as well as suspending the US refugee resettlement program, was a streamlined version of a ban issued in January that was chaotically ruled out and blocked by federal courts across the country. Due to a time lag in the amended order, the second ban was never implemented as it was blocked just hours before it was due to come into effect.

The administration had argued it was necessary to protect American national security, but lawyers for the American Civil Liberties Union, who brought the case in Maryland, argued that comments made by Trump and members of his campaign during the 2016 election, highlighted the ban was designed to discriminate against Muslims.

In December 2015, Trump pledged to implement a “total and complete shutdown” of Muslims entering the US, and went on to repeat the pledge throughout the presidential election campaign. The day after the new president announced the first travel ban in January, the former New York City mayor and top Trump surrogate, Rudy Giuliani, told Fox News he had been asked by the president to find “the right way to do it legally”.

“I’ll tell you the whole history of it: When he first announced it, he said ‘Muslim ban’,” Giuliani said. “He called me up, he said, ‘Put a commission together, show me the right way to do it legally’.”

Following the announcement of the revised order in March, White House press secretary Sean Spicer told reporters that the “principles” of the second ban “remain the same”.

During arguments earlier in May lawyers seized on all of these comments as evidence of the executive order’s animus towards Muslims. In the majority opinion issued on Thursday, the fourth circuit’s chief judge, Roger Gregory, also referred to them frequently.

“The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s [Executive Order Two] primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States,” Gregory wrote.

In a dissenting opinion, Judge Paul Niemeyer argued that campaign statements were “short-hand for larger ideas” and so should not be used to assess the executive order’s intent. “Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds,” Niemeyer wrote.

Sessions said in a statement that the administration still believed that the executive order is “well within his [Trump’s] lawful authority to keep the nation safe”.

“The Department of Justice strongly disagrees with the decision of the divided court, which blocks the president’s efforts to strengthen this country’s national security,” Sessions said, confirming the department will appeal to the supreme court.

The timing of the decision will prove awkward for the Trump administration, as the supreme court will finish its term in late June, meaning a full appeal will likely not be heard for another four months, barring a specially arranged session. “It is too late for the court to hear a full-dress appeal before the term ends,” said Carl Tobias, a law professor at the University of Richmond. “That means the court might not hear the appeal until it returns for the new term in October.”

The case before the fourth circuit was brought by a collective of legal and migrant advocacy groups including the ACLU, the National Immigration Law Center and the International Refugee Assistance Project (Irap).

Becca Heller, Irap’s director, said in a statement on Thursday that the decision “confirmed that the Muslim ban is discriminatory and harmful”.

“The president cannot simply slap the words ‘national security’ on an unconstitutional policy and get away with it. We will fight this ban for as long as it takes,” she added.