New York Times
By Adam Liptak
June 12, 2017
WASHINGTON — A second federal appeals court has ruled against President Trump’s revised travel ban. The decision on Monday, from the United States Court of Appeals for the Ninth Circuit, in San Francisco, was the latest in a string of court rulings rejecting the administration’s efforts to limit travel from several predominantly Muslim countries.
The administration has already sought a Supreme Court review of a similar decision issued last month by the United States Court of Appeals for the Fourth Circuit, in Richmond, Va.
The two courts employed different reasoning to arrive at the same basic conclusion. The Fourth Circuit said the revised executive order violated the First Amendment’s prohibition of government establishment of religion.
The Ninth Circuit, by contrast, rested its conclusions on statutory grounds. It said Mr. Trump had exceeded the authority Congress had granted him in making national security judgments in the realm of immigration without adequate justification.
The decision, from a three-judge panel, was unanimous. It was issued jointly by Judges Michael Daly Hawkins, Ronald M. Gould and Richard A. Paez. All three were appointed by President Bill Clinton.
The ruling affirmed most of a March decision from Judge Derrick K. Watson, of the Federal District Court in Hawaii. But the appeals court narrowed the injunction issued by Judge Watson in a significant way.
The appeals court said Judge Watson had erred in barring the administration from conducting internal reviews of its vetting procedures while the case moved forward. That may turn out to be important as the Supreme Court considers how to address the cases.
The key part of the executive order suspended travel from six predominantly Muslim countries for 90 days to give the administration time to conduct a review. If that review can be completed, the justices may decide that the case is or will soon be moot.
Like the Fourth Circuit, Judge Watson blocked major parts of the revised order on the ground that they violated the Constitution’s ban on a government establishment of religion. Judge Watson wrote that the statements of Mr. Trump and his advisers made clear that his executive order amounted to an attempt to disfavor Muslims.
“A reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements and specific sequence of events leading to its issuance — would conclude that the executive order was issued with a purpose to disfavor a particular religion,” Judge Watson wrote.
In an earlier decision, the Ninth Circuit in February blocked Mr. Trump’s original travel ban. After that ruling, Mr. Trump narrowed the scope of his initial executive order, issued Jan. 27, a week into his presidency.
The new order’s 90-day suspension of entry from Iran, Libya, Somalia, Sudan, Syria and Yemen was more limited and subject to case-by-case exceptions. It omitted Iraq, which had been listed in the earlier order, and it removed a complete ban on Syrian refugees. It also deleted explicit references to religion.
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