Trump Travel Ban Loses Another Round in Court

A three-judge panel of the 9th U.S. Circuit Court of Appeals knocked down President Trump's attempt to reinstate his travel ban, ruling Monday that a lower court's decision to put that ban on hold was justified.

The court noted that the law gives the president "broad powers" over immigration policy, but said the Trump administration's March executive order still went too far when it barred citizens from six nations from entering the U.S. and suspended the nation's refugee program.

"Immigration, even for the president, is not a one-person show," Senior Circuit Judge Michael Daly Hawkins and Circuit Judges Ronald M. Gould and Richard A. Paez  wrote in an 86-page ruling in a case brought by the state of Hawaii. The issue is expected to be taken up by the U.S. Supreme Court soon.

In Monday's decision, the panel wrote that in barring 180 million people from six countries, suspending the entry of refugees and severely limiting the number of refugees ultimately allowed to enter the U.S. each year, "the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be 'detrimental to the interests of the United States.' "

The panel also raised questions about why the Trump administration chose specific targets in the executive order. The court could find no reason to single out the six countries targeted by the ban, stating that there's "no finding that present vetting standards are inadequate." The court also stated that there's no indication that the current refugee vetting process is inadequate or that allowing 110,000 refugees into the U.S. this year -- the executive order seeks to reduce that number to 50,000 -- would be harmful.

Loyola Law School Professor Jessica Levinson said the 9th Circuit agreed with the Trump administration that the president has extraordinary authority over issues of immigration and national security. But, she said, the court still won't let the ban take effect because the judges didn't feel the Trump administration had made a good case for singling out those six countries, temporarily halting the refugee program or severely limiting the number of refugee entries this year.

"They said, even though you have a lot of authority, we think you actually  exceeded that authority, and you haven't given us good reason for why you want to implement the travel ban,"  Levinson said. "They said it's a solution in search of a problem, so if you're going to implement something like this ban, you have to have a good reason for doing it."

But the court is allowing one part of the executive order to take effect, dealing with internal government procedures: The portion that requires the federal government to conduct a review of vetting procedures in other countries and to conduct an internal review of U.S. laws to determine how state and local governments could have more involvement in the refugee placement process.

The court wrote that the district court "abused its discretion" by preventing these "inward-facing" procedures from moving forward.

Still, overall, the 9th Circuit opinion is just the latest in a series of court decisions that have prevented the Trump administration from carrying out two separate executive orders aimed at curtailing travel to the U.S. by some foreign nationals.

The first executive order, issued days after Trump took office, was quickly put on hold by the courts after states, including California, sued.

The second, slightly more narrow executive order, sought to address some of the issues raised by the states, but was also challenged by both the state of Hawaii and, in a separate suit, the state of Virginia. The 4th U.S. Circuit Court of Appeals issued a ruling in the Virginia case last month,  also preventing the executive order from taking effect. But the cases -- which the Supreme Court is expected to take up -- relied on different legal arguments.

The Virginia case is based on religious discrimination: The lead judge wrote in the appeals court decision that the order “drips with religious intolerance, animus, and discrimination.”

Today's ruling by the 9th Circuit also found discriminatory intent, writing that the executive order violates laws prohibiting nationality-based discrimination. But the panel rested its decision on a statutory basis, ruling that Trump exceeded the power vested in his office by Congress under existing immigration laws.

"Whatever deference we accord to the president's immigration and national security policy judgements does not preclude us from reviewing the policy at all," the panel wrote.

Levinson said the difference between those rulings could change the game at the Supreme Court. The Trump administration has already appealed the 4th District court ruling to the high court, and is expected to appeal today's decision as well.

"My guess is the Supreme Court will consolidate both cases," Levinson said, adding that high court may be more sympathetic to the statutory argument made by the 9th Circuit panel.

"It's always a terrible game to get into to try to guess what the Supreme Court is going to do, but I think that the 9th Circuit's opinion here is going to be pretty appealing to them, because it basically allows them to avoid the big constitutional questions, and in Supreme Court jurisprudence, there's basically a maxim that if you can avoid the big question, if you can rule on statutory grounds, you should," she said. "That may provide a more appealing avenue to the Supreme Court."

But, Levinson noted, both the 4th and 9th Circuit opinions were written by Democratically appointed judges. She said while this shouldn't be an ideological or partisan question, the Supreme Court is seen as more conservative. And, Levinson added, whatever the high court decides will impact not just these executive orders but all orders under Trump and future presidents.

Read today's opinion here:

https://www.documentcloud.org/documents/3863292-Travel-Ban-Opinion-by-9th-Circuit-Appeals-panel