Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 25

President Trump speaks to reporters outside the White House, February 23, 2018. (Jim Bourg/Reuters)

2017—By a vote of 10 to 3, the en banc Fourth Circuit affirms a district court’s nationwide injunction on President Trump’s executive order that temporarily bars immigration from six majority-Muslim countries. That order spells out that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” But Chief Judge Gregory, author of the majority opinion, looks to campaign statements by candidate Trump to dismiss the order’s stated reasons as “a pretext for what really is an anti-Muslim religious purpose.”

In dissent, Judge Paul Niemeyer (joined by Judges Shedd and Agee) faults the majority for violating the Supreme Court’s precedent in Kleindienst v. Agee (1972), “which held that courts are precluded from ‘look[ing] behind’ ‘facially legitimate and bona fide’ exercises of executive discretion in the immigration context to discern other possible purposes.”

(In October 2017, the Supreme Court will vacate the Fourth Circuit’s judgment on the ground that the expiration of the relevant provision of the executive order meant that there was no longer a “live case or controversy.”)

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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