President Trump’s string of defeats in federal court over his controversial travel ban went unbroken on Monday, thanks to a ruling in the Ninth Circuit Court of Appeals that he had exceeded the lawful authority granted by Congress on immigration matters.
A three-judge panel issued its 82-page ruling in Hawaii v. Trump without identifying an individual author, indicating each of them contributed to it. In practical terms, the decision is vestigial: The Fourth Circuit Court of Appeals also ruled against the travel ban last month, meaning it would still be blocked even if the Ninth Circuit had sided with the Trump administration. The U.S. Supreme Court is currently mulling whether it will hear the administration’s appeal of that decision, likely leaving the ultimate fate of the ban with the nine justices.
But Monday’s ruling from the panel also offered a glimpse into how the Supreme Court might rule against the travel ban without addressing its more controversial aspects, such as whether the president violated the First Amendment’s religious-freedom protections by targeting six Muslim-majority countries or whether the Equal Protection Clause forbids him from barring all residents from specific nations from entering the United States. Instead, the panel found a different fundamental flaw in the ban: Its justifications, they suggest, appear to have no basis in reality.
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).”
To underscore its point, the court then cited a passage from Justice Frank Murphy’s dissent in Korematsu v. United States, the infamous 1944 Supreme Court decision that upheld Japanese-American internment during World War II. Other federal courts, including the Fourth Circuit, have cited the case as a warning against discrimination. The Ninth Circuit judges instead focused on the indiscriminate deprivation of rights it allowed.
“[T]he exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways,” Murphy wrote in the passage quoted by the court. “It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.”
The panel similarly found a lack of justification in the order to support the temporary suspension of the U.S. Refugee Assistance Program. “EO2 does not reveal any threat or harm to warrant suspension of USRAP for 120 days and does not support the conclusion that the entry of refugees in the interim time period would be harmful,” the panel wrote. “Nor does it provide any indication that present vetting and screening procedures are inadequate.” Accordingly, it upheld the lower court’s decision to suspend that part of the executive order as well.
The Ninth Circuit panel’s focus on statutory language results in a much different ruling against the executive order than the one issued by the Fourth Circuit last month. The panel did not decide whether the ban wrongly discriminated against Muslims, which was a central focus of the Fourth Circuit ruling. Because that court already ruled against the ban on statutory grounds, the judges said Monday it was unnecessary to determine whether the president’s words or deeds violated the First Amendment’s religious-freedom protections. It also did not engage at length or in depth with Trump’s litany of controversial remarks about the ban, which many plaintiffs had cited as evidence of discrimination.
It’s not clear whether this impersonal approach will forestall another presidential tirade against the Ninth Circuit on Twitter. Previous rulings against him by the court led Trump to challenge its legitimacy and call for it to be broken up. Asked about Monday’s ruling during his daily press briefing, White House Press Secretary Sean Spicer only said the administration was reviewing the decision.
“I think we can all attest that these are very dangerous times and we need every available tool at our disposal to prevent terrorists from entering the United States and committing acts of bloodshed and violence,” Spicer said. “We continue to be confident that the president’s executive order to protect this country is fully lawful and ultimately will be upheld by the Supreme Court.”
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