CHICAGO, IL – FEBRUARY 01: Several hundred demonstrators protest President Donald Trump’s executive order which imposes a freeze on admitting refugees into the United States and a ban on travel from seven Muslim-majority countries at the international terminal at O’Hare Airport on February 1, 2017 in Chicago, Illinois. The demonstrators rallied in front of the Department of Homeland Security offices and marched through the Loop during rush hour to the Federal Building Plaza. (Photo by Scott Olson/Getty Images)In a remarkable 10-to-3 decision, a federal appeals court on Thursday affirmed the freeze on the second iteration of President Donald Trump’s executive order on immigration from six majority Muslim countries. It’s extraordinary for a federal court to tell the president directly that he’s lying; I certainly can’t think of any other examples in my lifetime.
The decision and the breakdown of the judges voting against the ban — which includes Republican appointees — presages defeat for the executive order in the U.S. Supreme Court, should the Trump administration decide to seek review there. Faced with this degree of repudiation from the federal judiciary, Trump would be well advised not to go to the Supreme Court at all.
The decision for the 4th Circuit Court of Appeals was written by Chief Judge Roger Gregory, who has the distinction of having been appointed to the court first by Bill Clinton, in a recess appointment that would have expired, and then by George W. Bush — a reminder of bipartisanship in the judicial nomination process that seems almost inconceivable today.
Gregory’s opinion had three basic parts, of which the middle one was the most important.
Here’s where the opinion got personal. Gregory acknowledged that the executive order was “facially legitimate.” But, he said, “bona fide” literally means “in good faith.”
And here, he reasoned, the plaintiffs had provided “ample evidence that national security is not the true reason” for the order. That evidence, the court said, came mostly from Trump himself, in the form of his “numerous campaign statements expressing animus towards the Islamic faith.”