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Travel ban case: Here’s what the Supreme Court might look at

File Photo: United States Supreme Court Building

By Ariane de Vogue

CNN Supreme Court Reporter

WASHINGTON (CNN) — The next stop in the legal challenge over the Trump administration’s travel ban against people from six Muslim-majority countries may be the Supreme Court.

Thursday, in rejecting the travel ban, the 4th US Circuit Court of Appeals zeroed in on the comments Donald Trump as a candidate and president, the government’s national security justifications, and the role of the courts. But while the majority said the travel ban “drips with religious intolerance, animus and discrimination,” the dissenters focused keenly on how the Supreme Court might view the case differently.

Attorney General Jeff Sessions vowed to “seek review” of the case at the Supreme Court.

“This opinion relies on principles that should be exceptionally persuasive to the Supreme Court,” said Joshua A. Matz, who filed a brief in support of the challengers, “though, of course, it is possible that the justices will see things differently than the lower court.”

Here’s key parts of the 4th Circuit ruling the justices could review:

Scathing account of the purpose of the order

“Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles — that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

“The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that the (Executive Order’s) primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States.”

Over several pages the majority walked through comments made by Trump and his advisers during the campaign and explained why they should be taken into consideration.

The majority conceded that campaign statements “may not reveal all that much about a government actor’s purposes” but added, “The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action.”

“We need not probe anyone’s heart of hearts to discover the purpose … or President Trump and his aides have explained it on numerous occasions and in no uncertain terms.”

But how far is too far in using Trump’s statements?

Three judges all appointed by Republican presidents filed three separate dissents, each joining the other.

Judge Paul V. Niemeyer suggested that the Supreme Court will not buy into the use of Trump’s campaign statements.

He wrote that the majority “looks past the face” of the order and instead considers campaign statements. He said that the approach “adopts a new rule of law that uses campaign statements to recast the plain, unambiguous, and religiously neutral text.” He warned that “opening the door to the use of campaign statements to inform the text of later executive orders has no rational limits.”

“Unless corrected by the Supreme Court, the majority’s new approach, which is unsupported by any Supreme Court case, will become a sword for plaintiffs to challenge facially neutral government actions, particularly those affecting regions dominated by a single religion,” he said.

Justified by national security?

The majority expressed skepticism that the national security justifications were convincing.

“Our inquiry,” the court said “is one of balance, and on balance, we cannot say that the government’s asserted national security interest outweighs the competing harms to plaintiffs.”

“These cases recognize that when we protect the constitutional rights of the few, it inures to the benefit of all. And even more so here, where the constitutional violation injures plaintiffs and in the process permeates and ripples across entire religious groups, communities and society at large.”

Some of the most searing language came from Judge James A. Wynn, a Barack Obama nominee, who wrote separately to say he would have gone further than the majority by holding that the ban likely violates the Constitution as well as federal law.

“Invidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination,” Wynn said.

“Laid bare,” he said, “the order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims.” Wynn said such action “contravenes the authority Congress delegated to the President in the Immigration and Nationality Act.

Executive power

Wynn agreed with his colleagues in the majority that the Court should not “blindly defer” to executive action, all in the name of the Constitution’s separation of powers.”

“We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.”