Thursday, May 25, 2017

IRAP v. Trump En Banc opinion (intros)

Today's IRAP v. Trump 4th Circuit en banc opinion is 205 pages long. Here's a breakdown: The first 11 pages lists the parties and numerous amici.

Pages 12-79 is the majority opinion which begins like this:
The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.
Next is a concurring opinion by one judge on page 80:
I concur in the judgment of the majority insofar as it affirms the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the Executive Order against the officers, agents, and employees of the Executive Branch of the United States, and anyone acting under their authorization or direction, who would attempt to enforce it, because it likely violates the Establishment Clause of the United States Constitution. I also concur in the judgment of the majority to lift the injunction as to President Trump himself.
Then there is a concurring in part/concurring in the judgment opinion on pages 81-93:
I concur in the majority opinion’s analysis with respect to its conclusions: (1) that the stated “national security purpose” of the Second Executive Order1 likely fails Mandel’s “bona fide” test and violates the Establishment Clause, see Kleindienst v. Mandel, 408 U.S. 753 (1972); and (2) that the record before us supports the award of a nationwide injunction.2 I write separately to express my view that although the plaintiffs are unlikely to succeed on the merits of their claim under Section 1152(a)(1)(A), their request for injunctive relief under the INA nevertheless is supported by the failure of Section 2(c) to satisfy the threshold requirement of Section 1182(f) for the President’s lawful exercise of authority.
On pages 94-147 is another concurring opinion that begins:
Invidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination. We have matured from the lessons learned by past experiences documented, for example, in Dred Scott and Korematsu. But we again encounter the affront of invidious discrimination—this time layered under the guise of a President’s claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their nation of origin. Laid bare, this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims. Such discrimination contravenes the authority Congress delegated to the President in the Immigration and Nationality Act (the “Immigration Act”), 8 U.S.C. § 1101 et seq., and it is unconstitutional under the Establishment Clause.
This is followed by a dissent at pages 148-178, which starts:
The district court issued a nationwide preliminary injunction against Executive Order No. 13,780 issued by President Donald Trump on March 6, 2017, to suspend temporarily, while vetting procedures could be reviewed, the entry of aliens from six countries, reciting terrorism-related concerns. While the court acknowledged the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide” exercises of executive discretion in the immigration context to discern other possible purposes, id. at 770. Relying on statements made by candidate Trump during the presidential campaign, the district court construed the Executive Order to be directed against Muslims because of their religion and held therefore that it likely violated the Establishment Clause of the First Amendment.
Another dissent appears at pages 179-189, and begins:
National security is a complex business with potentially grave consequences for our country. Recognizing this fact, the Supreme Court has observed that “it is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981).2 This observation is especially true in today’s world, where we face threats from radical terrorists who seek to cross our borders for the purpose of harming us and destroying our way of life. Although we often are quick to forget the fact, “the real risks, the real threats, of terrorist attacks are constant and not likely soon to abate,” Boumediene v. Bush, 553 U.S. 723, 793 (2008); therefore, “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). Given the multitude of critical factors involved in protecting national security, including the delicacy of foreign relations and the worldwide intelligence information that is constantly generated, combined with the ever-changing threatening circumstances, “questions of national security . . . do not admit of easy answers, especially not as products of the necessarily limited analysis undertaken in a single case,” Lebron v. Rumsfeld, 670 F.3d 540, 549 (4th Cir. 2012), and “they are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil,” Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
 And finally from pages 190-205 is another dissent (about standing):
In their haste to reach the merits of the plaintiffs’ Establishment Clause claim, my colleagues in the majority neglect to follow the longstanding and well-defined requirements of Article III of the United States Constitution. They err, as did the district court, in holding that the plaintiffs had standing to bring an Establishment Clause claim. For that reason, I respectfully dissent from the majority’s decision to uphold the district court’s preliminary injunction. The plaintiffs do not have standing to bring the current action.
In sum:
Affirmed in part, vacated in part by published opinion. Chief Judge Gregory wrote the opinion, in which Judges Motz, King, Wynn, Diaz, Floyd, and Harris joined in full. Judge Traxler wrote an opinion concurring in the judgment. Judge Keenan wrote an opinion concurring in part and concurring in the judgment, in which Judge Thacker joined except as to Part II.A.i. Judge Wynn wrote a concurring opinion. Judge Thacker wrote a concurring opinion. Judge Niemeyer wrote a dissenting opinion, in which Judges Shedd and Agee joined. Judge Shedd wrote a dissenting opinion, in which Judges Niemeyer and Agee joined. Judge Agee wrote a dissenting opinion, in which Judges Niemeyer and Shedd joined.
See also Just The Hits: Key Excerpts From 4th Circuit Travel Ban Ruling