Fourth Circuit Upholds District Court Preliminary Injunction Against “Travel Ban” (Injunction Remains Stayed)

On February 15, 2018, a majority of an en banc United States Court of Appeals for the Fourth Circuit upheld the decision of the United States District Court for the District of Maryland issuing a preliminary injunction against portions of the entry restrictions on nationals from six countries in President Donald Trump’s September 24, 2017 Presidential Proclamation [PDF version]. A nine-judge majority found that the plaintiffs had shown a likelihood of the merits on their Establishment Clause claim (that the travel restrictions impermissibly disfavored Muslims). Five of those judges also held that the plaintiffs were likely to succeed on some of their statutory claims, while four of the judges did not find it necessary to reach the statutory claims. Four other judges on the Fourth Circuit dissented in three separate opinions. Notably, the December Ninth Circuit decision on the same issue did not reach the Establishment Clause claims, ruling instead on statutory grounds.

However, the significance of the Fourth Circuit decision is limited in two respects. Firstly, the travel restrictions remain in effect due to the Supreme Court staying all of the injunctions pending its own consideration of the case [see blog]. Secondly, despite having been directed by the Supreme Court on December 4, along with the Ninth Circuit, to resolve the appeals “with appropriate dispatch,” the Fourth Circuit took over two months to issue its decision. In the interim, the Supreme Court granted the Government’s cert petition (agreed to hear the case) off an appeal of the Ninth Circuit decision. See our blog on the Ninth Circuit decision [see blog]. However, as we noted, the Supreme Court has asked for the parties to brief it on the Establishment Clause claims, which were not reached in the Ninth Circuit decision. We will continue to publish updates on the litigation as it proceeds.

To read about the details of the September 24, 2017 proclamation’s travel restrictions, including the latest updates on the issue, please see our comprehensive article [see article].