Appeals court rules against ban
SEATTLE — Another U.S. appeals court stomped on President Donald Trump’s revised travel ban Monday, saying the administration violated federal immigration law and failed to provide a valid reason for keeping people from six mostly Muslim nations from coming to the country.
The decision by a unanimous three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals helps keep the travel ban blocked and deals Trump a second big legal defeat on the policy in less than three weeks.
The administration has appealed another ruling against the ban to the Supreme Court, which is likely to consider the cases in tandem. The White House said it is confident the high court will uphold Trump’s executive order.
The 4th U.S. Circuit Court of Appeals in Virginia last month cited the president’s campaign statements calling for a “total and complete shutdown” on Muslims entering the U.S. as evidence that the 90-day ban was unconstitutionally “steeped in animus and directed at a single religious group,” rather than necessary for national security.
The 9th Circuit, which heard arguments in Seattle last month in Hawaii’s challenge to the ban, found no need to analyze Trump’s campaign statements. It ruled based on immigration law, not the Constitution.
“Immigration, even for the president, is not a one-person show,” the judges said, adding: “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”
Attorney General Jeff Sessions the Justice Department “will continue to seek further review by the Supreme Court.”
“The Executive Branch is entrusted with the responsibility to keep the country safe under Article II of the Constitution,” he said in a written statement. “Unfortunately, this injunction prevents the President from fully carrying out his Article II duties and has a chilling effect on security operations overall.”
Judges Michael Hawkins, Ronald Gould and Richard Paez — all appointed by President Bill Clinton — said the travel ban violated immigration law by discriminating against people based on their nationality when it comes to issuing visas and by failing to demonstrate that their entry would hurt American interests.
The president’s order did not tie citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen to terrorist organizations or identify them as contributors to “active conflict,” the court said. It also did not provide any link between their nationality and their propensity to commit terrorism.
“In short, the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States,” the ruling said.
The judges pointed to a June 6 tweet by Trump saying the order was aimed at “dangerous countries.” That helped demonstrate that he was not assessing whether the roughly 180 million citizens of the six countries had ties to terrorism, they said.
Because of the conflict with immigration law, the judges said they didn’t need to consider whether it also violated the Constitution’s prohibition on the government favoring or disfavoring any religion. The 4th Circuit found the policy unconstitutional on that basis.
The White House predicted a win at the Supreme Court.
“Frankly, I think any lawyer worth their salt 100 percent agrees that the president’s fully within his rights and his responsibilities to do what is necessary to protect the country,” spokesman Sean Spicer said.
Trump’s suspension of the U.S. refugee program also remains blocked. The 9th Circuit said he was required to consult with Congress in setting the number of refugees allowed into the country in a given year and that he could not decrease it midyear. The refugee program is not at issue in the 4th Circuit case.
Hawaii Attorney General Douglas Chin said the new ruling proved that “our system of checks and balances, enshrined in the Constitution for more than 225 years, remains in place.”
Trump issued his initial travel ban on a Friday in late January, bringing chaos and protests to airports around the country. A Seattle judge blocked its enforcement nationwide in response to a lawsuit by Washington state — a decision that was unanimously upheld by a different three-judge 9th Circuit panel.
The president then rewrote his executive order rather than appeal to the U.S. Supreme Court at that time. The new version, designed to better withstand legal scrutiny, named six countries instead of seven — dropping Iraq — and spelled out more of a national security rationale.
It also listed some reasons that travelers from those nations might be granted waivers allowing them into the U.S. despite the policy.
Several states and civil rights groups also challenged the revised ban, saying it remained rooted in discrimination and exceeded the president’s authority.
In March, U.S. District Judge Derrick Watson in Hawaii blocked the new version from taking effect, citing what he called “significant and unrebutted evidence of religious animus” in Trump’s campaign statements.
The 9th Circuit on Monday narrowed Watson’s ruling in some minor ways, allowing the administration to conduct an internal review of its vetting procedures for refugees and visa applicants.