The case was brought by the state of Hawaii, which argued that the ban could harm its higher-education system by blocking potential foreign students from applying, and by Ismail Elshikh, the imam of the Muslim Association of Hawaii. Elshikh’s mother-in-law is a Syrian national who lives in her home country; he argued she would not be able to enter the United States under the executive order.
In the Fourth Circuit Court of Appeals’ ruling last month, Chief Judge Roger Gregory wrote the order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” The Ninth Circuit panel avoided those kinds of findings by focusing on whether Trump’s order complied with the text of Section 1182(f), a provision of federal immigration law.
Under Section 1182(f), Congress granted the president the power to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” if he or she “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.” Previous presidents, ranging from Jimmy Carter to Ronald Reagan, have invoked this power at one time or another on national-security grounds.
What does it mean for the president to “find” that the foreign nationals’ entry would be detrimental? The Trump administration argued it was necessary to freeze visa applications as part of a review of security procedures. But the judges found no basis for that claim. “There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests,” the panel noted. “These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.”
The administration also argued the ban was necessary on national-security grounds, claiming that each of the six targeted countries is either “a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” But the panel rejected that argument because the government did not justify why the nationals of those countries should be barred accordingly.
“The Order does not tie these nationals in any way to terrorist organizations within the six designated countries,” the panel said. “It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.”
As a result of its overbreadth, the order “does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the panel concluded. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under § 1182(f).”