//  5/5/17  //  Latest Developments

On Monday, sitting en banc, the Fourth Circuit Court of Appeals will hear argument in IRAP v. Trump, a challenge to President Trump's revised travel ban. The following Monday, a three-judge panel of the Ninth Circuit Court of Appeals will hear argument on the revised travel ban in Hawaii v. Trump. We'll cover both arguments here on Take Care.

As a resource for our readers, Take Care hereby presents in a single post all commentary we have rounded up in our daily updates since the site launched on March 16. Together, the following articles tell the story of the revised travel ban and offer a diverse set of perspectives on legal issues in the litigation. We hope you find this post useful. 


This week saw extensive analysis of President Trump’s revised entry ban and the Ninth Circuit’s denial of en banc review in Washington v. Trump (here).

  • Amir Ali argues that President Trump’s anti-Muslim campaign statements must be considered in analysis of the revised entry ban.
  • Richard Primus argues that motives matter in constitutional law, and criticizes arguments by Judge Kozinski and Jeffrey Toobin (New Yorker).
  • Jonathan Taylor walks through Judge Kozinski’s opinion defending the revised entry ban and explains why it is incorrect.
  • Leah Litman and Amir Ali review Judge Gorsuch’s record in the Bush Administration and conclude he likely would uphold the entry ban.  
  • Michael Dorf explains why the Establishment Clause has emerged as the main stumbling block for the revised entry ban.
  • Also writing for Take Care, Amir Ali observes that President Trump likely will appeal very quickly, even though waiting to appeal would be the wiser course.
  • At ACS Blog, Heidi Kitrosser considers the propriety of holding President Trump accountable for his campaign statements.
  • Rick Hasen (Slate) argues that Judge Kozinski may have dissented with the goal of persuading Justice Kennedy to uphold the entry ban.
  • And Lyle Denniston reports that Judge Chuang in Maryland is now considering a broader order against the revised entry ban.
  • Angel Cabrera offers criticism in the Washington Post.
  • The U.S. skipped hearings at the Inter-American Commission on Human Rights because they involved topics related to the revised entry ban (Just Security).
  • Deloram Farzaneh explores the effect of the entry bans on Iranian perceptions of the United States at Just Security.
  • At The Atlantic, Garrett Epps investigates whether judges should consider a president’s statements when analyzing the meaning of an executive order.  Bob Bauer also addresses this question on his blog.
  • Ciara Torres-Spelliscy (Brennan Center) argues that Judge Gorsuch might vote against the entry ban on grounds of religious freedom.
  • At Just Security, Daphne Eviatar argues that the revised entry ban “is doomed.”
  • Lyle Denniston reports that the government has appealed one district court order (Maryland) and offers thoughts on why it has not yet appealed another (Hawaii).
  • Jeffrey Toobin (New Yorker) argues that federal courts have erred in considering President Trump’s campaign statements in their constitutional analysis; at Concurring Opinions, Gerard Magliocca advances a similar argument.
  • At Volokh Conspiracy, Will Baude notes that the question whether courts should treat government institutions as “black boxes,” or should probe more deeply, is familiar.

A federal judge in Hawaii denied a request to narrow the scope of his order against the revised entry ban.

  • Lyle Denniston outlines arguments presented over the weekend and describes Judge Watson’s short order.

The Trump Administration asked the Fourth Circuit Court of Appeals to expedite its review of a ruling against its revised entry ban, reports Josh Gerstein (Politico).

  • Here is the government’s motion.
  • At Buzzfeed News, Chris Geidner analyzes why the Administration requested expedited review but asked the court not to rule for at least two weeks.
  • Waiting to appeal lower court rulings is harmful to the Trump Administration’s arguments for the revised entry ban (San Francisco Chronicle).

The Fourth Circuit Court of Appeals ordered an expedited briefing schedule on the revised travel ban and set argument for May 8 (WSJPolitico).

  • Lyle Denniston details the administration’s scheduling requests.

U.S. District Judge Derrick Watson of Hawaii has been subject to threats in the wake of his ruling against the administration’s revised travel ban (NYT).

The Supreme Court Case that upheld Japanese interment during WW-II shows why courts must consider evidence of anti-Muslim animus in the entry ban cases, argue Ian Samuel & Leah Litman on Take Care.

WEEK OF MARCH 27, 2017

On Wednesday, a federal judge in Hawaii converted his temporary restraining order against President Trump’s revised travel ban into a preliminary injunction (NYT).

  • The order can be found here.
  • Yesterday, the Justice Department filed a notice of appeal from the Hawaii ruling to the Ninth Circuit Court of Appeals (WaPo).
  • Lyle Denniston breaks down the order and explains what options the Trump Administration has going forward.
  • At Constitutional Law Prof Blog, Ruthann Robson analyzes the latest order.
  • Josh Blackman offers a quick reaction comparing the orders issued by federal judges in Hawaii and Maryland.
  • At Lawfare, Peter Margulies critiques the order as overbroad.
  • The New York Times profiles individual plaintiffs across the sprawling legal challenges to the Administration’s travel ban.

On Thursday, both DOJ and Plaintiffs endorsed an offer from the Fourth Circuit for initial en banc review of an order enjoining the revised travel ban (Lyle Denniston).

  • This is the appeal from a ruling by Judge Chuang (D. Maryland).
  • Trump Administration lawyers would support review of the revised entry ban by an en banc panel of the Fourth Circuit, but only if that would not slow things down, Lyle Denniston reports.
  • On Take Care, Amir Ali examines why the government would agree to initial en banc proceedings.
  • Tina Vasquez explains the privacy consequences of the revised entry ban for noncitizens who are not green card holders.

13 States have filed an amicus brief urging the Fourth Circuit to reverse an injunction halting part of the revised entry ban (Law360).

  • Their brief can be found here.

DOJ’s brief defending President Trump's revised entry ban on appeal in the Fourth Circuit is riddled with factual and legal errors, as Leah Litman explains for Take Care.

  • Matthew Segal of the ACLU argues that President Trump’s campaign statements must be considered in judicial review of the revised entry ban.
  • DOJ’s brief "seems to implicitly admit some measure of doubt as to whether Trump’s [Oath of Office] will be accepted at face value" (Lawfare). 

The backlash to President Trump's revised entry ban is not a "revolt of the judges," but rather standard judicial practice in response to extraordinary events, as Leah Litman and Daniel Deacon explain for Take Care.

  • Jay Shooster of Just Security echoes this position here.
  • Cyrus Mehta critiques President Trump’s immigration rhetoric on the Insightful Immigration Blog.

President Trump could be intentionally stalling the Ninth Circuit revised entry ban appeal, opines Josh Gerstein (Politico)

  • Josh Blackman suggests that the Ninth Circuit delay may be procedural.

The First Amendment applies to noncitizens, it applies abroad, and it applies to noncitizens abroad, as Niko Bowie and Leah Litman explain on Take Care.


President Trump's campaign statements must be considered in the travel ban cases and compel a finding of unlawful purpose, explains Joshua Matz on Take Care in the second of a multi-part series on the litigation.

  • See the first post in Joshua’s series here.

President Trump’s revised entry ban returns to the Ninth Circuit’s calendar in May (PoliticoLA Times).

  • Here is the order scheduling briefing and argument.
  • Former CIA chief John Brennan described President Trump’s entry ban as “simplistic” and “wrongheaded” (GuardianNY Daily NewsTelegraph).

DOJ's Fourth Circuit brief in the revised entry ban appeal, which argues that the plaintiffs lack standing, “advances a number of profoundly incorrect claims,” explain Ira C. Lupu, Peter J. Smith, and Robert W. Tuttle on Take Care.

Tamer El-Ghobashy, Peter Nicholas, Felicia Schwartz, and Ben Kesling document why President Trump excluded Iraq from the entry ban (WSJ).

The Clerk of Court for the Fourth Circuit has revealed that numerous "ex parte" e-mail messages supporting President Trump's revised entry ban have been sent to judges on the court, reports Lyle Denniston.

A magistrate judge has ordered one of President Trump’s key campaign advisors on immigration to turn over a document he used to brief the president-elect during the transition (Politico).

Rudy Giuliani did not admit that President Trump’s original entry ban was a “Muslim ban,” argues David Bernstein (Washington Post).

WEEK OF APRIL 10, 2017

Hawaii asked the Ninth Circuit for full court review of President Trump’s revised travel ban (LA Times).

  • ACLU chapters have sued DHS for information about the revised travel ban (The Hill).

The Fourth Circuit has voted to hear the Trump Administration’s appeal regarding the revised travel ban en banc, with oral arguments still set for May 8 (BuzzFeed News). 

  • Here is the order.
  • The Fourth Circuit's initial en banc hearing on President Trump’s revised travel ban is unusual, notes Lyle Denniston (Law News).


Constitutional law scholars, represented by Joshua Matz of Take Care, filed a brief in the Fourth Circuit travel ban appeal, arguing that the ban violates the Establishment Clause prohibition against governmental action based on animus toward particular religions.

  • The brief can be found here.

Caroline Corbin breaks down the issue of mixed motives in the Establishment Clause context with regard to the travel ban (Just Security).

President Trump’s travel ban violates the Establishment Clause principle that government is forbidden from acting with animus toward a religious group, argues Joshua Matz for Take Care.

  • Joshua’s post breaks down an amicus brief he filed in the Fourth and Ninth Circuit travel ban cases on behalf of leading constitutional law scholars.
  • A new Quinnipiac poll shows a sharp uptick in public support for allowing Syrian refugees (Politico).

WEEK OF APRIL 24, 2017

An amicus brief filed by constitutional scholars in the Muslim Ban cases offers a compelling alternative basis for invalidating Trump's executive order (The Economist).

  • Joshua Matz is counsel of record on this amicus brief (Take Care)
  • C-SPAN will live-broadcast the Fourth Circuit's oral argument (ABA Journal).
  • Trump’s motives for the travel ban matter under existing law, argues Richard Primus (Take Care). 

WEEK OF MAY 1, 2017

Courts have taken Trump at his word and this has caused major trouble for the Administration (WaPo).

According to Amir Ali and Joshua Matz on Take Care, President Trump’s incendiary rhetoric towards Muslims post-election and post-inauguration contextualize the supposedly neutral ban.

President Trump's revised travel ban reflects animus toward the American Muslim community, not just foreign or non-citizen Muslims, explain Joshua Matz and Amir Ali (Take Care).

When the en banc Fourth Circuit hears arguments next week in the travel ban case, Judge J. Harvie Wilkinson III won't participate, according to Zoe Tillman (BuzzFeed).


And that's our update! Thanks for reading. We cover a lot of ground, so our updates are inevitably a partial selection of relevant legal commentary.

If you have any feedback, please let us know here.

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