Wall Street Journal
By Brent Kendall
June 12, 2017
A West Coast federal appeals court on Monday blocked President Donald Trump from enforcing an executive order seeking to temporarily ban U.S. travel for people from six Muslim-majority countries, dealing another legal blow to the White House.
The Ninth U.S. Circuit Court of Appeals, based in San Francisco, said Mr. Trump exceeded the scope of his broad powers to police U.S. borders. The president’s executive order, which he has said would reduce the chances of terrorist attacks, “runs afoul” of legal provisions that prohibit nationality-based discrimination, a three-judge Ninth Circuit panel said.
“Immigration, even for the president, is not a one-person show,” the panel said in a 78-page opinion.
The appeals court also prohibited the president from moving forward with his plan to temporarily suspend the U.S. program for admitting refugees.
The court, however, did narrow part of a Hawaii judge’s earlier decision. The Ninth Circuit ruled the president could move forward with part of his executive order that called for the federal government to review world-wide vetting procedures for visa applicants, which could lead to additional countries being subject to a travel ban.
White House press secretary Sean Spicer said the White House is reviewing the decision. “We can all attest that these are very dangerous times and we need every tool at our disposal” to prevent terrorists from entering the country, Mr. Spicer said. He said the administration is confident that the executive order is “fully lawful and ultimately will be upheld by the Supreme Court.”
The ruling from the Ninth Circuit is more of a loss than a win for Mr. Trump, who has said his planned restrictions are needed to address the national-security threats posed by potential terrorists. In a series of tweets last week Mr. Trump called for a travel ban that is broader than the current executive order he signed and that the Justice Department has been defending in court.
That order, signed March 6, temporarily bars U.S. entry for people from Iran, Libya, Somalia, Sudan, Syria and Yemen. It’s a scaled-back version of a more ambitious effort that Mr. Trump pursued in January and dropped after courts issued early rulings halting its implementation.
The restrictions also have fared poorly in court, as judges have agreed with challengers that Mr. Trump’s past statements about Muslims and his support for a so-called Muslim ban suggest his order unlawfully targeted people on the basis of religion.
The Ninth Circuit’s ruling followed a somewhat different path of reasoning. The court didn’t focus on the president’s statements, including those from the campaign. And unlike some other notable recent court decisions, it didn’t base its ruling on the Constitution’s Establishment Clause, which bars the president from favoring or disfavoring particular religions.
Instead, the Ninth Circuit said Mr. Trump violated provisions in the Immigration and Nationality Act that require him to offer sufficient findings that travelers from the banned countries would harm the U.S., under current screening protocols. Among other things, the court said the president’s order didn’t demonstrate that current U.S. screening procedures for travelers are inadequate.
The court also said the executive order “makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.”
The ruling came in a case from Hawaii, where state officials and a local resident sued the president.
The Ninth Circuit decision follows one from the Fourth Circuit in Richmond, Va., on May 25 that rejected the Trump administration’s request to reinstate the travel ban. That appeals court affirmed an earlier ruling by a federal trial judge in Maryland.
Those rulings, however, blocked only the travel restrictions, not the refugee restrictions or the government vetting study.
The Justice Department has appealed to the Supreme Court, and it is possible the justices could take initial action as soon as this week.
—Rebecca Ballhaus contributed to this article.
Write to Brent Kendall at brent.kendall@wsj.com
For more information, go to: www.beverlyhillsimmigrationlaw.com
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