Saturday, December 23, 2017

9th Circuit rules against Trump Travel Order No. 3

But stays its ruling pending Supreme Court review.
The U.S. Court of Appeals for the Ninth Circuit has ruled against President Trump’s Third Travel Order on virtually the same grounds it blocked a March iteration of the order.
A copy of the Opinion (pdf.) is embedded at the bottom of this post.

Recycling their (vacated) opinion from June, the same three Clinton-appointed judges, Michael D. Hawkins, Ronald M. Gould and Richard A. Paez, again held—unanimously—that the restrictions exceed the president’s statutory authority under the Immigration and Nationality Act. In doing so, they mostly upheld an injunction issued by the same Hawaii judge who blocked the March executive order.
This Third Travel Order, unveiled as a presidential proclamation in September, prohibits entry of nationals—to varying degrees—from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Before it went into effect, district judges in Hawaii and Maryland blocked enforcement.
Crucially, this ruling has no immediate practical effect.
As Legal Insurrection reported on December 4, the Supreme Court has stayed the Hawaii and Maryland injunctions until the Justices either refuse to hear an appeal or rule against the government on the merits. The panel itself noted, “In light of the Supreme Court’s order staying this injunction pending ‘disposition of the Government’s petition for a writ of certiorari, if such writ is sought,’ we stay our decision today pending Supreme Court review.” As such, the travel order will, for the time being, continue to be enforced with respect to all nationals of the targeted countries.
Summarizing its argument, the panel wrote:
We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has embodied in the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: Before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.
This argument is difficult to square with the actual statutory language. For example, Congress did not “attach” a “critical prerequisite to [the president’s] suspension authority” by requiring him to make a “legally sufficient finding that the entry of the specified individuals would be ‘detrimental to the interests of the United States.'” The text of the statute says that
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Nada about a “legally sufficient” finding. It’s not even clear what a “legally sufficient” finding would be. The Proclamation explains the national security threat posed by each individual country.
The judges also obliquely likened Trump’s travel orders to FDR’s internment of Japanese-Americans. “In assessing the public interest, we are reminded of Justice Murphy’s wise words: ‘All residents of this nation are kin in some way by blood or culture to a foreign land.’ It cannot be in the public interest that a portion of this country be made to live in fear,” they wrote quoting a dissenting opinion from Korematsu. It is unclear why “a portion of this country” would “live in fear” if immigration from six countries in the Middle East were paused. It’s also unclear what that has to do with the president’s statutory authority under the INA.
We’re now just back to where we started. The government will appeal to the Supreme Court, which will likely agree to hear the case.
The Fourth Circuit is expected to issue a ruling soon on the Travel Order.

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