On Monday, the U.S. Court of Appeals for the Ninth Circuit upheld the Hawaii district court’s nationwide preliminary injunction against President Trump’s revised “travel ban.” This travel ban was Trump’s second attempt at delivering on his bigoted and callous campaign promise to prevent Muslims from entering the United States: it sought to deny entry to all nationals of six majority-Muslim countries and to impose draconian restrictions on refugees, including temporarily banning the entry of all refugees and reducing the cap on refugees for fiscal year 2017 by more than fifty percent.
The revised travel ban largely followed the original Muslim ban’s template, except that it does not include Iraq in its list of majority-Muslim countries, it does not apply to current visa-holders, it does not contain explicit preferences for non-Muslim refugees, and it provides for case-by-case waivers at the discretion of consular or border control officers. Nonetheless, the intent of the revised travel ban is clear, as Trump has repeatedly referred to it as a continuation of his efforts to deny entry to Muslims.
Notably, the Ninth Circuit rejected the travel ban because it overstepped the President’s authority as delegated by Congress under the Immigration and Nationality Act (“INA”), which includes a prohibition on national origin discrimination. This approach stands in contrast to the Ninth Circuit’s prior ruling on the original Muslim ban and the Fourth Circuit’s ruling on the revised ban, which both affirmed lower-court injunctions on constitutional grounds. By avoiding the constitutional questions and deciding the case on statutory grounds, the Ninth Circuit highlighted an alternate legal theory to defeat the travel ban, based on canons of statutory interpretation rather than the more overtly political process of constitutional analysis. No doubt the unanimous three-judge panel of the Ninth Circuit had the conservative-majority Supreme Court in mind when it took this more unassuming approach.
In addition to constitutional claims based on the Establishment Clause of the First Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendment, Plaintiffs the State of Hawaii and Dr. Ismail Elshikh also alleged that the revised travel ban ran afoul of the INA by: (1) discriminating on the basis of nationality; (2) ignoring and modifying the statutory criteria for denying entry based on terrorism-related concerns; and (3) exceeding the scope of statutory authority delegated to the President by Congress.
Article I, section 8 of the Constitution grants Congress the power to “establish a uniform rule of naturalization,” but Congress has delegated some of that authority to the President under the INA. That delegation, however, requires that the President make a finding that the entry of a “class of aliens . . . would be detrimental to the interests of the United States” before denying entry to that group. The Court correctly observed that the Trump Administration had made no such finding that the 180 million nationals of the six countries were inherently dangerous based on their nationality alone. It cited to one of Trump’s tweets to support the position that Trump intended to target countries, not individuals from those countries who had, for example, engaged in terrorist activities or other dangerous behavior. It also cited to leaked Homeland Security reports which had concluded that excluding individuals based on nationality would be ineffective in preventing terrorist attacks. As to the refugee ban, the Court noted that refugees already undergo the most lengthy and involved vetting process of anyone seeking admission to the United States, and determined that the Trump Administration had provided no justification for how suspending or dramatically reducing the number of refugees admitted would promote public safety. By failing to make any such a finding of detriment – beyond xenophobic conjecture – Trump exceeded the authority Congress granted to him under the INA.
Similarly, the revised travel ban was found to violate the INA’s prohibition on national-origin discrimination, enacted in 1965 to eliminate the prior immigration system based on racial quotas – i.e., favoring immigrants from northern Europe and heavily restricting immigration from Asia and Africa. As discussed above, the ban’s emphasis on nationality as the sole criterion for exclusion, as opposed to culpable conduct, could not satisfy the INA’s nondiscrimination mandate, “because it would enable the President to restore discrimination on the basis of nationality that Congress sought to eliminate.” The Ninth Circuit also addressed the fact that the INA contains detailed provisions governing terrorism-related admissibility, which require reasonable grounds to believe that an individual alien is likely to engage in terrorist activity, which would be rendered superfluous by the revised travel ban.
Finally, the Court took a broad view and addressed the scope of the President’s authority under the tripartite framework established by Justice Jackson’s concurrence in the Steel Seizure Case. The Ninth Circuit concluded that “the President took measures that were incompatible with the expressed will of Congress, placing his power ‘at its lowest ebb.’”
In short, once more, Trump and his inexperienced team of white nationalists and corporate cronies have failed to achieve one of their goals because they could not be bothered to do their homework. And the Ninth Circuit – like the Fourth Circuit and various district courts – once again affirmed the role of the judicial branch to ensure that we remain a nation of laws which do not wither in the face of an impulsive, unprincipled, and uninformed Executive.
Given the nationwide injunction and the importance of these issues, the Supreme Court is likely to confront the revised travel ban – possibly in the next three weeks before the end of the current term. When it does, the High Court may find that the Ninth Circuit’s example of constitutional avoidance and rigorous interpretation of the INA is the most prudent way to dispose of the Muslim Ban once and for all.