Appeals court: Travel ban is unconstitutional

President Donald Trump speaks in the State Dining Room of the White House in Washington Monday Feb. 12 2018 during a meeting with state and local officials about infrastructure. (Carolyn Kaste

Using President Trump's own words against him, a federal appeals court on Thursday added a second legal defeat for the White House's latest attempt to bar the entry into the USA of people from six Muslim-majority nations.

The latest ban had replaced two previous versions that had been impeded by federal courts.

The ban, which affects people travelling to the U.S. from six predominantly Muslim countries, including Iran, was introduced after the U.S. Supreme Court partially upheld Trump's executive order on June 26.

Because the U.S. Supreme Court has allowed the administration to implement Muslim Ban 3.0 while the various legal challenges against it unfold, the Fourth Circuit's decision will not have any immediate effect on the ability of foreign nationals from the banned countries to obtain a U.S. visa. The circuit court's majority, however, echoed CAIR's allegations in its ruling against the travel restrictions, saying that the administration's justification for the policy was different than its true intent in light of past statements from Trump that the justices interpreted to show an anti-Muslim bias.

Cecillia Wang, the deputy legal director for the American Civil Liberties Union, said the group "will continue this litigation until the Muslim ban is ended once and for all".

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"On a fundamental level, the proclamation second-guesses our nation's dedication to religious freedom and tolerance", the chief justice, Roger Gregory, wrote for the court in the majority opinion. It was the second federal appeals court to find that Trump's third travel ban was likely unconstitutional, but both rulings have been put on hold until the U.S. Supreme Court hears oral arguments in the matter this spring. But challengers to the latest ban, issued as a presidential proclamation in September, said it was tainted by religious animus and not adequately justified by national security concerns.

"Gregory cited Trump's August 17, 2017, tweet recounting an apocryphal story about U.S. General John Pershing killing Filipino Muslims with bullets dipped in pigs" blood as a warning to others of that faith.

"This case involves an Article III court's bold effort to second-guess US foreign policy and, in particular, the President's discretionary decisions on immigration implicating matters of national Security", Niemeyer wrote. The presidential proclamation also placed travel restrictions on certain government officials in Venezuela and their family members.

The court went on to state that the Muslim ban violated the First Amendment's Establishment Clause because the primary objective of the ban is "to exclude Muslims from the United States". The 9th Circuit did not rule on whether the ban had violated the First Amendment by discriminating against Muslims. He quoted Trump's tweets supporting his original travel ban executive order, which multiple courts determined was likely unconstitutional, as well as a tweet expressing support for an unverified story about a general who killed Muslims using bullets dipped in pig's blood and his retweets of anti-Muslim videos.

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