By Lydia Wheeler
June 12, 2017
The 9th Circuit Court of Appeals on Monday ruled against President Trump’s so-called travel ban, delivering another blow to the administration as it waits for the Supreme Court to decide whether to intervene.
The California-based court affirmed in large part the Hawaii district court ruling blocking parts of the order, which temporarily banned nationals from six Muslim-majority countries from entering the U.S., suspended the entry of all refugees, and reduced the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year.
In a unanimous ruling Monday, a three-judge panel on the court said Trump’s order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.
Though the Immigration and Nationality Act gives the president broad powers to control the entry of foreigners, the judges said the president’s authority is subject to certain statutory and constitutional restraints.
Trump stoked controversy last week by again labeling his order a “travel ban” on Twitter. White House officials had rejected that phrase, saying the administration action is not a ban, but is rather setting up a system of extreme vetting.
The judges on Monday cited Trump’s tweets in defending its finding that 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
“Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s ‘travel ban.’” they wrote in a footnote, citing Trump’s June 5th tweet.
“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” Trump had tweeted.
But the judges said the Hawaii district court erred by blocking the government’s ability to conduct interagency reviews of its vetting procedures.
In their opinion, Judges Michael Daly Hawkins, Ronald Gould, and Richard Paez – all Clinton era appointees – vacated that part of the lower court ruling and ordered the court to issue a new order that blocks the temporary ban but allows the government to proceed with its review.
The court also called the government’s argument that the district court erred in issuing an injunction that runs against the president himself “well taken.”
“Generally, we lack jurisdiction of a bill to enjoin the President in the performance of his official duties,” the judges said.
They vacated that part of the district court’s injunction to the extent the order runs against the president, but said it still applies to the remaining defendants and all their respective officers, agents, servants, employees and attorneys, and persons in active concert or participation with them.
The decision marks the second time the 9th Circuit has ruled against Trump. In February, the court refused to reinstate Trump’s first travel ban after a federal district court judge in Washington state blocked it.
Trump revised that order – removing Iraq from the list of banned countries, eliminating the indefinite ban on Syrian refugees and deleting language that gave preference to religious minorities when the refugee program resumed – to address the court’s concerns.
The administration has already asked the Supreme Court to step in.
The Department of Justice filed two emergency applications on June 1 asking the Supreme Court to block the 4th Circuit and Hawaii district court rulings blocking the ban and to review its case.
The Supreme Court had asked the groups fighting the ban to respond to the DOJ’s requests by 3 p.m. on Monday.
The 9th Circuit is now the second federal appeals court to rule against Trump’s revised travel ban.
A full panel of 13 judges on the Richmond, Va.-based 4th Circuit Court of Appeals also refused to reinstate it, but focused on the statements Trump made while on the campaign trail and in office in finding the order discriminatory.
The judges said in their 10-3 ruling that the revised order “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination.”
–This report was last updated at 2:50 p.m.
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