Week 21 (2017)
Week of May 22, 2017 through May 26, 2017
Int’l Refugee Assistance v. Donald Trump (Gregory 5/25/2017): The Fourth Circuit upheld a preliminary injunction of Executive Order No. 13780, which suspended the entry of certain nationals from entering the country. In its majority opinion, the court determined that the plaintiffs had standing, that Mandel did not preclude analyzing the Executive Order for constitutional issues, and that the plaintiffs were likely to succeed on the merits in their Establishment Clause challenge. Additionally, the court found no error in the district court’s decision to make the injunction a nationwide one. Consequently, the Fourth Circuit affirmed the district court’s preliminary injunction. Full Opinion
US v. Dean Walker (Traxler 5/24/2017): The Fourth Circuit held that convictions under an Ohio statute categorically qualify as drug trafficking offenses rather than mere possession offenses because the statute’s prohibited acts require knowledge of an intended sale. The court also held, for an issue of statutory interpretation, that the “intent to manufacture, import, export, distribute, or dispense” is an element required only for drug possession offenses and thus the element is not required for offenses involving the manufacturing, importation, or distribution of controlled substances. The district court applied a 16-level enhancement to the defendant’s sentence because of his past drug trafficking offense, and the defendant appealed the sentence claiming that his past offense did not qualify as a drug trafficking offense. The Fourth Circuit found no error and affirmed the district court’s decision. Full Opinion
Wikimedia Foundation v. NSA/CSS (Diaz 5/23/2017): The Fourth Circuit held that the plaintiff Wikimedia made sufficient allegations in its complaint to survive a motion to dismiss for a lack of standing. Wikimedia’s allegations applied the rules governing Internet communications to come to a reasonable conclusion about the NSA’s surveillance methods. The district court dismissed the complaints of all eight plaintiffs, finding that the allegations in the complaint were too speculative for the plaintiffs to establish Article III standing. Finding that the plaintiff Wikimedia made sufficient allegations to survive a standing challenge and that other plaintiffs had not done so, the court vacated and remanded this dismissal of Wikimedia’s complaint and affirmed the dismissal of the complaints for the other plaintiffs. Full Opinion
Corey Woodfolk v. Gary Maynard (Gregory 5/23/2017): The Fourth Circuit held that it was inappropriate for the district court to bar inmate Woodfolk’s ineffective assistance of counsel claim. The district court concluded that Woodfolk’s ineffective assistance of counsel claim was barred because of the statute of limitations, but the Fourth Circuit disagreed, reasoning that the limitations period did not begin until after a recent resentencing hearing. The district court also barred the claim because independent state procedures existed that could adequately address Woodfolk’s claim; but the Fourth Circuit determined that the state procedures were inadequate. The Fourth Circuit reversed and remanded the district court’s judgment so that Woodfolk’s ineffective assistance of counsel claim could be addressed on the merits. Full Opinion
Maurice Hope v. Warden Cartledge (Shedd 5/22/2017): The Fourth Circuit held that although Hope’s counsel was deficient in its performance by failing to request an alibi charge, the deficiency did not result in prejudice under Strickland. Because Hope failed to demonstrate any misapplications of federal law and because the “beyond a reasonable doubt” standard was repeatedly instructed to the jury, the majority concluded that there was not a reasonable probability that the outcome of proceedings would have been different and found that there was no prejudice. Therefore, the court affirmed the district court’s decision denying Hope’s habeas corpus petition for ineffective assistance of counsel. In a dissenting opinion, Judge Thacker argued that there was a reasonable probability that the outcome of the proceedings would have been different if the alibi charge had been given. Full Opinion
Int’l Refugee Assistance v. Donald Trump, No. 17-1351
Decided: May 25, 2017
The Fourth Circuit upheld a preliminary injunction of Executive Order No. 13780 (“Order”), which suspended the entry of certain nationals from entering the country. In its majority opinion, the court determined that the plaintiffs had standing, that Mandel did not preclude analyzing the Order for constitutional issues, and that the plaintiffs were likely to succeed on the merits in their Establishment Clause challenge. Additionally, the court found no error in the district court’s decision to make the injunction a nationwide one. Consequently, the Fourth Circuit affirmed the district court’s preliminary injunction.
The Order suspended the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. The Order also justified the selection of the Designated Countries by stating that “[e]ach of these countries is a state sponsor of terrorism, has been significantly comprised by terrorist organizations, or contains active conflict zones.” Furthermore, the Order states that “until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.” However, before the signing of the Order, the Department of Homeland Security released a report to the public stating that increased screening and vetting likely would not significantly reduce terrorism activity in the United States. Additionally, prior to the enactment of the Order, President Trump and his staff made statements that they were going to prevent Muslims from entering the country. Later, when the constitutionality of the bans were questioned, President Trump and his staff made statements that they were going to target territories rather than Muslims. The district court determined that the plaintiffs’ challenge was likely to succeed on the merits and issued a preliminary injunction for § 2(c) of the Order. The Fourth Circuit reviewed the district court’s factual findings for clear error and its legal conclusions de novo.
The Fourth Circuit first addressed the Government’s justiciability challenges and denied challenges for standing, ripeness, and consular nonreviewability. In analyzing standing, the court emphasized that the plaintiffs specifically alleged how they were personally impacted by the Order. It found that a plaintiff’s prolonged separation from his wife was a real and immediate threat that was sufficient to give the plaintiff standing. Additionally, the court found that the plaintiffs had standing to challenge the Order because it caused feelings of marginalization and exclusion.
The Fourth Circuit next addressed whether granting the preliminary injunction was appropriate. To obtain a preliminary injunction, a plaintiff must establish (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.
In analyzing the first prong, the court first addressed the deference typically given to other branches under Kleindienst v. Mandel and determined that Mandel did not preclude the court from investigating the Order for first amendment issues. In Mandel, the Supreme Court held that when the Executive branch exercises the power to exclude an alien for a facially legitimate and bona fide purpose, courts should not balance its justification against a plaintiff’s First Amendment interests. Here, the stated purpose of the Order was to protect the nation from potential terrorist activity, and the court found this to be facially legitimate. However, statements made by President Trump and his staff seemed to indicate that the Order targeted Muslims, so the Fourth Circuit found that the Order invoked the purpose of national security in bad faith and that the purpose was not bona fide. Therefore, assessing the constitutionality of the Order was appropriate.
After determining that the Order was facially neutral in relation to religion, the district court applied the test from Lemon v. Kurtzman and concluded that the Order likely violated the Establishment Clause of the First Amendment. The Lemon Test requires the Government to show that the challenged action (1) has a primarily secular purpose, (2) that the action’s primary effect neither advances nor inhibits religion, and (3) that the action does not foster excessive government entanglement with religion. The Fourth Circuit’s analysis centered on the first prong of the Lemon Test, which required the Order to primarily have a secular purpose. The context surrounding the Order and statements made by President Trump and his staff seemed to indicate that the Order had a primarily religious purpose of excluding Muslims from the United States. Additionally, former national security officials claimed that the Order served no legitimate national security purpose. Therefore, the Fourth Circuit concluded that the plaintiffs were likely to succeed on the merits for their Establishment Clause challenge.
The Fourth Circuit then determined that the plaintiffs were likely to suffer irreparable harm as a loss of First Amendment freedoms would unquestionably constitute an irreparable harm. Additionally, the Fourth Circuit analyzed the balance of equities and public interest factors together, and it determined that the harms of a likely Establishment Clause violation outweighed the Government’s national security interests.
Judge Niemeyer wrote a dissenting opinion arguing that the district court erred by refusing to apply the Mandel decision and that it radically extended Establishment Clause precedents. Judge Niemeyer’s dissenting opinion also argued that the consideration of campaign statements in the analysis of the Order should not have been allowed. Judge Shedd’s dissent argued that the preliminary injunction should not have been granted because national security interests outweighed any constitutional harms. Judge Agee’s dissent argued that the plaintiffs did not have standing.
Ultimately, the Fourth Circuit upheld the district court’s preliminary injunction as to President Trump’s Order.
Jonathan D. Todd