Travel ban struck down by another appeals court
9th Circuit rules order discriminates based on nationality
President Trump’s effort to restrict travel from six predominantly Muslim countries suffered another in a string of legal setbacks Monday when a second federal appeals court said it discriminated based on nationality and lacked justification based on national security.
The U. S. Court of Appeals for the 9th Circuit based its ruling on federal immigration law rather than the Constitution’s religious protections, thereby highlighting several ways the travel ban could be struck down by the Supreme Court, where it’s headed next. Most other courts have ruled that the ban discriminates against Muslims.
The panel of three judges, all appointed by President Clinton, also handed the Trump administration an olive branch that could do more harm than good: It overturned a part of a federal district court judge’s ruling that the government claimed had blocked a 90- day review of current vetting procedures. That starts the clock on a process that could render the overall case moot in three months, if the Supreme Court has not ruled by then.
Even as the 9th Circuit panel released its 78- page decision, challengers to the travel ban from Hawaii and Maryland submitted their final arguments to the Supreme Court, which could decide two things soon: whether to hear the case now or in the fall, and whether to let the ban go into effect in the meantime.
The challengers’ legal briefs came in response to the Justice Department, which has asked that the justices jumpstart the ban now. The legal papers cited its impact on Muslims from Iran, Libya, Somalia, Sudan, Syria and Yemen — in part by reciting Trump’s own words during the presidential campaign and since. They even cited the president’s tweets from last week, in which he called for a tougher ban.
But the California- based 9th Circuit court sidestepped the issue of whether the ban violates the Constitution’s protection from religious discrimination. Rather, the judges said the travel ban discriminates based on travelers’ nationality without improving national security.
“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.”
Attorney General Jeff Sessions criticized the ruling, as he has done after several other district and appeals court decisions, and vowed to push his Supreme Court appeal.
“President Trump knows that the country he has been elected to lead is threatened daily by terrorists who believe in a radical ideology, and that there are active plots to infiltrate the U. S. immigration system— just as occurred prior to 9/ 11,” Sessions said in a statement. “The president is committed to protecting the American people and our national security.”
The panel’s objections under the Immigration and Nationality Act, rather than the First Amendment, are sure to be taken into consideration by the justices. That gives them additional reasons to strike down the travel ban, even if they do not decide that it discriminates against Muslims.
The 9th Circuit panel found that the administration had not established enough of a national security rationale “to suspend the entry of more than 180 million people on the basis of nationality. National security is not a ‘ talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”