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On Monday, we learned that the 4th Circuit Court of Appeals did not go Trump’s way; instead, taking zero action to nullify previous judicial decisions to thwart his temporary ban, and paving the way to a Supreme Court showdown where the ultimate fate of the ban will be decided.
Though Trump continues to maintain that his executive order is not a Muslim ban, previous efforts to block the ban seemed to read campaign rhetoric into the language of his order, thereby deeming it discriminatory in nature. We should ask ourselves, is it really the job of the courts to extrapolate meaning into an order devoid of racial connotation? I think not.
Though the ban focuses on six nations comprised primarily of Muslim populations, it is clearly not based on religious intolerance but, rather, on the need for extreme vetting to protect Americans from terrorist infiltration. Ironically, the executive order only mentions Syria by name and other “Countries of Particular Concern,” as identified by the Obama administration, undermining the notion that he is singling out certain nationalities (yes, another example of fake news). The Trump Administration has actually downplayed the notion that it is a ban at all, since it would still allow millions of people entry, especially those with appropriate paperwork and legitimate reason to be here, e.g., foreign nationals traveling on diplomatic visas.
The 4th Circuit Court, unlike the 9th Court of Appeals, made no such allusions to campaign statements, instead placing the onus on Trump to make the case that such a ban was needed in the first place—something they imply he failed to do. In other words, the executive order violates immigration law as it is currently written. Sadly, by couching the argument in these terms, it may end up making it simpler for the Supreme Court to keep the ban from being implemented. Let us hope the Court exercises better judgment.
It should be noted that Trump is not sitting idly by waiting to see what happens in the Supreme Court. In typical Trump fashion, the president will employ other means to accomplish his goals to ensure the safety of American citizens and secure the country’s borders, irrespective of any Supreme Court decision. As reported by Reuters, the Trump administration has “already rolled out some new requirements not blocked by courts, including additional questions for visa applicants.”