Last week, as House Republicans voted to take health care away from millions of people, the judges of the United States Court of Appeals for the Fourth Circuit made final preparations for a hearing on Donald Trump’s Muslim ban. The Fourth Circuit will be the first federal appeals court to consider the second version of Trump’s ban, which was halted by multiple federal trial courts around the time it was supposed to take effect on March 16.
In an unusual move, the case will be heard Monday by every active judge on the court (except for one judge who is recused). Ordinarily, federal appellate cases are heard by panels of three judges. In unusual circumstances, a panel’s decision will be reconsidered by the full court, but it is extraordinarily rare for a full appeals court to bypass the three-judge panel completely.
The specific case before the Fourth Circuit, International Refugee Assistance Project v. Trump, concerns an order by Federal District Judge Theodore Chuang. That order halted a key provision of the most recent version of Trump’s Muslim ban.
Chuang’s order followed a similar order by a judge in Hawaii. It also followed an appeals court decision halting an earlier, harsher version of the Muslim ban. The latest version of the ban explicitly states that it was revised in order to address “judicial concerns.”
Currently, the ban prohibits citizens of six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen — from traveling to the United States, although it contains exceptions for lawful permanent residents, people who already had a valid visa, and a few other such groups. The primary legal argument against the ban is that, while it is framed as a ban on certain foreign nationals, that framing is merely a fig leaf for Trump’s unconstitutional effort to ban Muslims.
Indeed, Trump himself has said as much. In a December 2015 interview, Trump admitted that “people were so upset when I used the word Muslim,” so he started “talking territory instead of Muslim.” Former New York City Mayor Rudy Giuliani, a close Trump confidante, said in a later interview that Trump instructed him to “show me the right way to do it legally” — and that the nations-based approach was deemed the best way to dress the Muslim ban up as something else.
Yet, as Judge Chuang noted in his opinion, Trump was also quite explicit about what he intended to do. The man who currently occupies the White House called “for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.”
Such a plan, Chuang wrote, cannot be squared with a Constitution that forbids any “law respecting an establishment of religion.”
The Fourth Circuit is likely to agree with Chuang, as its bench is dominated by Clinton and Obama appointees. Yet Monday’s hearing is likely to be little more than a sideshow before the case proceeds to a Supreme Court dominated by Republicans — and there are worrying signs that the Court’s conservative bloc may be sympathetic to Trump.