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.
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.
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.”