As detailed in our previous alert on this issue, on April 10, 2017, the United States Court of Appeals for the Fourth Circuit ordered a hearing en banc to review the legality of the 90-day suspension of travel and entry into the United States of certain foreign nationals pursuant to the “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States” issued on March 6, 2017, (the “new E.O.”). On May 8, 2017, the court heard oral arguments from the United States Government and the individual and organization plaintiffs, which include the International Refugee Assistance Project and the Hebrew Immigrant Aid Society.

The Fourth Circuit Affirmed in Substantial Part the Nationwide Injunction Against the New E.O.

On May 25, 2017, the Fourth Circuit in a 10-3 ruling affirmed in substantial part the United States District Court of Maryland’s March 16, 2017 nationwide injunction against Section 2(c) of the new E.O. Specifically, the court held that:

  1. the “reasonable observer” could easily find that the new E.O.’s main goal was to exclude people from the United States on the basis of religion;
  2. the district court did not err in concluding that the plaintiffs are likely to succeed on the merits of their establishment clause claim;
  3. the plaintiffs are likely to suffer irreparable harm if Section 2(c) of the new E.O. takes effect; and
  4. the public interest favors upholding the injunction.

In analyzing whether or not it should uphold the injunction, the court “looked behind” the new E.O. to determine if it was motivated by a primarily religious purpose, rather than its stated reason of promoting national security. Specifically, the court recounted the backdrop of public statements made by the President and his staff regarding the new E.O.’s main purpose. The court concluded that the statements, which were made at different points in time, both before and after the election, indicated that changes to the new E.O. “reflect an effort to help it survive judicial scrutiny, rather than to avoid targeting Muslims for exclusion from the United States.”

This decision comes as a victory to the individuals, organizations and states across the nation that challenged the first Executive Order regarding travel suspensions, which was issued on January 27, 2017. The United States Department of Justice intends to appeal this decision to the United States Supreme Court.

The Fourth Circuit Lifted the Injunction as to the President Only

The Fourth Circuit found that the district court erred in issuing an injunction against the President himself. Specifically, the court recognized that it has no jurisdiction to enjoin the President in the performance of his official duties. Thus, the court modified the scope of the injunction by lifting it as to the President only. Notably, the court clarified that its ruling on this issue does not “in any way suggest[ ] that Presidential action is unreviewable.” Moreover, the court emphasized that the nationwide injunction “shall otherwise remain fully intact.”

The New E.O. is Subject to Additional Judicial Review in the Ninth Circuit

As noted in our previous alert on this issue , the new E.O. is also under review before the United States Court of Appeals for the Ninth Circuit. That court heard oral arguments regarding Sections 2 and 6 of the new E.O. on May 15, 2017. As of this writing, the court has not issued a ruling.