On May 25, 2017, a divided Fourth Circuit US Court of Appeals, sitting en banc, substantially upheld the nationwide preliminary injunction against section 2(c) of Executive Order No. 13780 issued in March by the District Court of Maryland. Section 2(c) of what the court labeled “EO-2” suspends for a 90-day period the entry of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen. Citing numerous references by US President Donald Trump and his surrogates, both during the US presidential election campaign and following Trump’s inauguration, to the threat that Muslims pose to US national security, the court found that “EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose.” This would be apparent, according to Chief Judge Gregory, to any “reasonable observer.” Finding that the plaintiffs are likely to succeed on the merits of their claim under the Establishment Clause of the Constitution and that they are likely to suffer irreparable harm in the absence of a preliminary injunction, the Court of Appeals upheld the lower court decision, keeping in place the nationwide preliminary injunction against the executive order. The court did, however, lift the injunction to the extent it was directed at the president himself. Unless Supreme Court review is pursued, the preliminary injunction will remain in effect pending a decision by the lower court on the merits of the plaintiffs’ claims.
This case did not involve the section of the executive order temporarily banning the admission of refugees. Both provisions are involved in the Ninth Circuit’s review of a temporary restraining order against the executive order issued by the District Court in Hawaii.