A travel ban is drawing judges from five states — and attention from around the world — to a courtroom of the Richmond-based 4th U.S. Circuit Court of Appeals today.
The government is challenging a preliminary injunction that blocks President Donald Trump’s revised executive order suspending entry into the U.S. for the citizens of six predominantly Muslim countries.
The 4th Circuit serves Virginia, West Virginia, North Carolina, South Carolina and Maryland, where the injunction was issued by a lower court judge in March. The legal and political stakes in the case are high.
The court usually hears arguments in three-judge panels, and a few cases a year are granted “en banc” rehearings before all the 15 active judges. An initial en banc hearing like this one has not happened for at least 25 years.
And for the first time in the court’s history, the arguments will be broadcast live, on C-SPAN.
Chief Judge Roger L. Gregory, who grew up in Petersburg, is the only appeals court judge in the country appointed by presidents of two different parties.
Nine of the court’s other active judges were appointed by Democratic presidents and five by Republicans — one of them, Judge J. Harvie Wilkinson III, has reportedly recused himself because his son-in-law, Jeffrey Bryan Wall, the acting solicitor general, is one of the lawyers for the government.
The clerk’s office cannot confirm if any judge or judges have recused themselves and said Thursday that the composition of the en banc panel will be revealed Monday. The office said only active judges would sit for an initial en banc hearing, so any missing judge would not be replaced by one of the two senior judges.
Arguments are set to begin at 2:30 p.m.
The government is appealing U.S. District Judge Theodore D. Chuang’s March injunction blocking the part of Trump’s revised executive order that bars entry to the U.S. to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen.
The injunction was granted in a suit brought by the American Civil Liberties Union and the National Immigration Law Center on behalf of the International Refugee Assistance Project and others challenging the Protecting the Nation from Foreign Terrorist Entry into the United States executive order of March 9.
The president’s original executive order of Jan. 27 was revised following challenges in other courts, and the revised order was to take effect March 16.
Chuang’s 43-page March 16 ruling noted that the second executive order differs from the first, “in that the preference for religious minorities in the refugee process has been removed.”
Chuang, however, held that, “Despite these changes, the history of public statements continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban.”
The judge wrote that government officials defending the order “do not directly contest that this record of public statements reveals a religious motivation for the travel ban. Rather, they argue that many of the statements may not be considered because they were made outside the formal government decision-making process or before President Trump became a government official.”
“In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban,” he wrote.
“While the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban,” Chuang concluded.
In pleadings to the 4th Circuit, the government argues that the revised order is an appropriate national security measure temporarily suspending the entry of nationals from the six countries while it is determined if current screening and vetting practices are adequate to detect terrorists. It denies that it discriminates on the basis of religion.
Dozens of friend-of-the-court briefs have been filed by advocacy organizations, legal scholars, religious groups, former government officials, members of Congress and states including Virginia.
The brief filed by Virginia and more than a dozen other states urges the 4th Circuit to uphold Chuang’s preliminary injunction determining that the purpose is to exclude Muslims in violation of the establishment clause of the Constitution that bars the government from preferring one religion over another.
A dozen other states and many organizations are supporting the government’s appeal.
Scheduled to argue for the government is Wall, the acting solicitor general, and Lowell Vernon Sturgill Jr., deputy solicitor general. Omar Jadwat, of the ACLU, will argue for the International Refugee Assistance Project.
Carl Tobias, a professor at the University of Richmond School of Law and an expert on the court, said it is hard to predict when there might be a ruling.
“On the one hand, they agreed on an initial en banc because they wanted to expedite it and realized it was so important nationally. So I think they want to move quickly,” Tobias said. But, he said, “if (the court) splinters, it may take a while.”
He believes there will be a majority opinion and a dissent, and there might be concurrences.
“I think it will just take more time to write all those opinions and circulate them and then respond to one another,” he said.
Tobias said, “My sense is it probably would be in June. ... I think it would be tough for them to do it by the end of May.”
The potential absence of Wilkinson is interesting, Tobias said.
“He’s just a real leader on that court so I’m not sure how it cuts,” he said. “It’s not clear at all.”
Though President Ronald Reagan appointed Wilkinson to the court, “I don’t think people consider him conservative on lots of issues. ... He’s got great analytical skills, and he’s not afraid to dissent when he has to,” Tobias said.
The 4th Circuit will be the first federal appeals court to consider an appeal of the revised travel ban. The losing side can appeal to the U.S. Supreme Court.
An injunction won by the state of Hawaii will be heard by a three-judge panel of the 9th U.S. Circuit Court of Appeals on May 15. That panel’s ruling could be appealed to the full 9th Circuit before going to the U.S. Supreme Court.