Court deals an­other blow to Trump’s travel ban

9th Cir­cuit fo­cuses on immigration law, not con­sti­tu­tional is­sue. That may be tougher for pres­i­dent to fight.

Los Angeles Times - - FRONT PAGE - By Maura Dolan and Jaweed Kaleem

SAN FRAN­CISCO — An­other fed­eral ap­peals court re­fused on Mon­day to lift a hold on Pres­i­dent Trump’s travel ban, rul­ing that it lacked jus­ti­fi­ca­tion and vi­o­lated a fed­eral immigration law that pro­hibits dis­crim­i­na­tion based on na­tion­al­ity.

The unan­i­mous, un­signed de­ci­sion by a three­judge panel of the U.S. 9th Cir­cuit Court of Ap­peals pro­vided a sec­ond le­gal ba­sis for block­ing Trump’s travel mora­to­rium and de­liv­ered yet an­other ma­jor le­gal de­feat to the Trump ad­min­is­tra­tion.

Other courts, in­clud­ing the U.S. 4th Cir­cuit Court of Ap­peals, have ruled that Trump’s ban vi­o­lated con­sti­tu­tional pro­tec­tions against re­li­gious dis­crim­i­na­tion.

The ad­min­is­tra­tion has ap­pealed the 4th Cir­cuit de­ci­sion to the U.S. Supreme Court.

The 9th Cir­cuit, fol­low­ing a dif­fer­ent ra­tio­nale, said it wasn’t nec­es­sary to reach the con­sti­tu­tional ques­tion be­cause Trump’s or­der vi­o­lated the Immigration and Na­tion­al­ity Act passed by Congress.

That rea­son­ing could be more palat­able to the Supreme Court than the sweep­ing con­sti­tu­tional rul­ing by the 4th Cir­cuit, schol­ars said.

The panel of three judges ap­pointed by Pres­i­dent Clin­ton faulted the travel or­der on two grounds. The court said that it failed to jus­tify why a ban was needed and that it re­stricted entry based on na­tion­al­ity.

By sus­pend­ing entry of more than 180 mil­lion for­eign­ers and the ad­mis­sion of refugees, Trump ex­ceeded the au­thor­ity granted to him by Congress, the court said.

The ad­min­is­tra­tion ar­gued the ban was nec­es­sary to study whether se­cu­rity mea­sures were ad­e­quate for vet­ting trav­el­ers from Iran, Su­dan, So­ma­lia, Ye­men, Syria and Libya.

The 9th Cir­cuit, though, said the or­der con­tained no find­ing that cur­rent pro-

ce­dures were in­ad­e­quate, failed to tie the tar­geted na­tion­al­i­ties to ter­ror­ist groups or “pro­vide any link be­tween an in­di­vid­ual’s na­tion­al­ity and their propen­sity to com­mit terrorism or their in­her­ent dan­ger­ous­ness.”

“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 panel said.

The court agreed with the gov­ern­ment that fed­eral law gives pres­i­dents broad pow­ers over the entry of peo­ple from other coun­tries and over ac­tions to pro­tect the Amer­i­can pub­lic.

“But immigration, even for the pres­i­dent, is not a one-per­son show,” the court said.

The Supreme Court has not yet de­cided whether to take up the 4th Cir­cuit de­ci­sion.

Be­cause the 9th Cir­cuit reached the same re­sult but for dif­fer­ent rea­sons, the Supreme Court also would have to con­sider Mon­day’s de­ci­sion if it re­views Trump’s ac­tion.

“The Supreme Court is go­ing to have to take both of these cases,” UC Irvine School of Law Dean Er­win Che­merin­sky said.

The 9th Cir­cuit de­ci­sion “gives the Supreme Court two sep­a­rate bases for block­ing the travel ban, and it could only up­hold the travel ban if it re­jects both,” the con­sti­tu­tional law pro­fes­sor said.

The de­ci­sion by Judges Michael Daly Hawkins, Ron­ald M. Gould and Richard Paez largely leaves in place a na­tion­wide in­junc­tion is­sued by a fed­eral judge in Hawaii in re­sponse to a law­suit by the state and a Honolulu-based imam.

The 9th Cir­cuit nar­rowed the in­junc­tion a bit to al­low for in­ter­nal stud­ies of se­cu­rity mea­sures. The 4th Cir­cuit also al­lowed that por­tion of the or­der to take ef­fect.

Some le­gal schol­ars said that nar­row­ing of the in­junc­tions would make the cases moot within a mat­ter of months be­cause the Trump ad­min­is­tra­tion would have the 90 days it said it needed to re­view vet­ting pro­ce­dures.

“So now that that con­sul­ta­tion can hap­pen, the 90day travel ban will be mooted out no later than a few months from now — be­fore Oc­to­ber, when the case could be ar­gued” in the Supreme Court, said Margo Sch­langer, a Univer­sity of Michi­gan law pro­fes­sor and for­mer civil rights of­fi­cial in the Obama ad­min­is­tra­tion’s De­part­ment of Home­land Se­cu­rity.

Stephen Yale-Loehr, an immigration at­tor­ney and law pro­fes­sor at Cor­nell Univer­sity, said the Supreme Court might find it eas­ier to re­ject the travel ban based on a vi­o­la­tion of ex­ist­ing law rather than con­sti­tu­tional grounds.

“It is al­ways hard to win an immigration case on con­sti­tu­tional grounds in the Supreme Court be­cause immigration touches on for­eign re­la­tions and na­tional sovereignty is­sues,” he said.

Peo­ple out­side the United States also gen­er­ally don’t have U.S. con­sti­tu­tional rights, he said.

The com­bi­na­tion of the two rul­ings “pro­vides a onetwo punch against the ex­ec­u­tive or­der that will make it harder for the ad­min­is­tra­tion to win at the Supreme Court,” he said.

The high court is likely to decide this month whether it will re­view the travel ban.

The 9th Cir­cuit cited tweets from Trump, in­clud­ing one af­ter a ter­ror­ist at­tack in Lon­don this month in which he said that “we need a TRAVEL BAN for cer­tain DAN­GER­OUS coun­tries” — not na­tion­al­i­ties.

The judges also cited White House Press Sec­re­tary Sean Spicer, who said this month that Trump’s tweets were “con­sid­ered of­fi­cial state­ments by the pres­i­dent of the United States.”

Atty. Gen. Jeff Ses­sions said the ad­min­is­tra­tion would con­tinue to press for Supreme Court re­view.

“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.

Mon­day’s de­ci­sion stemmed from an ap­peal of a de­ci­sion by Hawaii-based U.S. District Judge Der­rick Wat­son, who is­sued a pre­lim­i­nary in­junc­tion af­ter con­clud­ing that anti-Mus­lim sen­ti­ment mo­ti­vated the ban.

The state of Hawaii and Is­mail El­shikh, the imam of the Mus­lim Assn. of Hawaii, ar­gued that Trump’s or­der stig­ma­tized Mus­lims and would hurt tourism and the re­cruit­ment of univer­sity stu­dents and fac­ulty.

Lawyers for the Trump ad­min­is­tra­tion coun­tered that pres­i­dents have wide au­thor­ity over mat­ters of immigration and na­tional se­cu­rity and should not be sec­ond-guessed by un­elected fed­eral judges.

A dif­fer­ent 9th Cir­cuit panel re­jected an ear­lier and broader travel ban in Fe­bru­ary, prompt­ing the ad­min­is­tra­tion to re­vise it.

Most of the groups that weighed in on the case urged the court to re­tain the in­junc­tion.

They in­cluded the Amer­i­can Bar Assn., for­mer na­tional se­cu­rity officials, technology com­pa­nies, re­li­gious or­ga­ni­za­tions, 165 mem­bers of Congress, refugee as­sis­tance groups, law pro­fes­sors and an or­ga­ni­za­tion that ar­ranges for ill chil­dren in Iran to re­ceive med­i­cal care in the U.S.

At­tor­neys gen­eral from 16 states, in­clud­ing Cal­i­for­nia and Illi­nois, also sided with Hawaii.

A coali­tion of non­profit gun groups, ad­vo­cates of “English first,” bor­der con­trol foun­da­tions and 14 states sided with Trump.

Mar­cus Yam Los An­ge­les Times

A PROTEST against the travel ban at Los An­ge­les In­ter­na­tional Air­port in Fe­bru­ary. Mon­day’s rul­ing says that pres­i­dents have broad pow­ers over immigration, but that “immigration ... is not a one-per­son show.”

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