A U.S. federal appeals court dealt another blow to President Donald Trump’s revised travel ban targeting six Muslim-majority countries on Thursday, siding with groups that say the policy illegally targets Muslims.
The 4th U.S. Circuit Court of Appeals upheld a lower court ruling that blocks the Republican’s administration from temporarily suspending new visas for people from Iran, Libya, Somalia, Sudan, Syria and Yemen.
The Richmond, Va.-based 4th Circuit is the first appeals court to rule on the revised travel ban, which Trump’s administration had hoped would avoid the legal problems that the first version encountered.
“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 chief judge of the circuit, Roger L. Gregory wrote.
In all, 10 of the 13 judges who heard the case voted against the Trump administration.
Trump will likely appeal to the U.S. Supreme Court.
Judges considered Trump’s past comments
A central question in the case is whether courts should consider Trump’s past statements about wanting to bar Muslims from entering the country.
The federal judge in Maryland who blocked the travel ban cited comments made by Trump and his aides during the campaign and after the election as evidence that the policy was primarily motivated by the religion.
Trump’s administration argued that the court should not look beyond the text of the executive order, which doesn’t mention religion. The countries were not chosen because they are predominantly Muslim but because they present terrorism risks, the administration says.
Some of the 13 judges on the appeals court that heard arguments earlier this month seemed skeptical of the administration’s argument.
“Don’t we get to consider what was actually said here and said very explicitly?” said Judge James Wynn Jr., who was appointed by former president Barack Obama, a Democrat.
Other judges worried about using a candidate’s word to evaluate a policy’s motive.
“Can we look at his college speeches? How about his speeches to businessmen 20 years ago?” said Judge Paul Niemeyer, who was tapped by former president George H.W. Bush, a Republican.