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9th Circuit upholds Hawaii injunction against Trump Travel Order No. 2

9th Circuit upholds Hawaii injunction against Trump Travel Order No. 2

Finds Trump exceeded authority and violated statutory prohibition against national origin discrimination, refused to address constitutional claims

We’ve been here before. Another judicial opinion upholding an injunction against Trump’s Travel Order No. 2. This time from the 9th Circuit arising out of the injunction by the Hawaii District Court.

The Opinion (pdf.) is embedded below. The Trump administration already has the Hawaii injunction before the Supreme Court, as it previously filed for contingent review of a possible 9th Circuit decision, expecting a losing result. The 4th Circuit Opinion also is before the Supreme Court for a stay of the injunctions, the opposition to which is due today.

The 9th Circuit does not focus as heavily on Trump’s campaign statements as did the 4th Circuit in finding a constitutional violation. Rather, the main ground in the 9th Circuit Opinion is that Trump exceeded his authority under statutes. The court does address alleged “national origin discrimination” based on statutory prohibition. Here’s an excerpt from the introductory paragraphs summarizing the ruling:

The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the
2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the  resident to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.

The 9th Circuit faulted the District Court for not ruling on these statutory grounds before reaching the constitutional issues (pp. 14-15). The 9th Circuit declined to rule on the constitutional claims, as it affirmed on statutory grounds:

After first determining that Plaintiffs have standing to assert their INA-based statutory claim, we conclude that Plaintiffs have shown a likelihood of success on the merits of that claim and that the district court’s preliminary injunction order can be affirmed in large part based on statutory grounds. For reasons further explained below, we need not, and do not, reach the Establishment Clause claim to resolve this appeal.

On the statutory authority ground, the Court second-guessed the justification in the Travel Order as to necessity. While the court speaks of it as a failure of Trump to meet his burden, in fact this is nothing more than the judiciary substituting its judgment for that of the president (italics in original):

Section 1182(f) requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States.11 This section requires that the President’s findings support the conclusion that entry of all nationals from the six designated countries, all refugees, and refugees in excess of 50,000 would be harmful to the national interest. There is no sufficient finding in EO2 that the entry of the excluded classes would be detrimental to the interests of the United States.

In fact, the Court reviewed the findings in the Order, but didn’t believe them. That’s not the Court’s role in this context.

We reject the first three reasons provided in Section 2(c) because they relate to preservation of government resources to review existing procedures and ensure adequate vetting procedures. There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests. These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.

We turn to the fourth reason—national security concerns—and examine whether it confers a legally sufficient basis for the resident’s conclusion that the nationality-based entry restriction is warranted….

The Order makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States. The Order does not tie these nationals in any way to terrorist organizations within the six designated countries. It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.13 In short, 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.14

This entire line of judicial reasoning is specious. Of course the Order makes findings that the provisions are necessary to prevent detriment to the U.S. The judges just decided that they know better than the executive branch, and substituted their judgment.

On the issue of discrimination based on national origin, the Court found that the provisions of a separate statute on immigrant visa overrode the provision on barring entry.

Section 1152(a)(1)(A) was enacted as part of that act, and provides:

[N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

8 U.S.C. § 1152(a)(1)(A) (emphasis added). Section 1152(a)(1)(A) contains specific exemptions, and § 1182(f) is not among them.

The Government tries to reconcile the Order’s Section 2(c) with § 1152(a)(1)(A) by arguing that Section 2(c) bars entry of nationals from the six designated countries but does not deny the issuance of immigrant visas based on 49 nationality. EO2’s suspension of entry on the basis of nationality, however, in substance operates as a ban on visa issuance on the basis of nationality.

The Court found:

We cannot blind ourselves to the fact that, for nationals of the six designated countries, EO2 is effectively a ban on the issuance of immigrant visas. If allowed to stand, EO2 would bar issuance of visas based on nationality in violation of § 1152(a)(1)(A)….

The Government also argues that the President may engage in discrimination on the basis of nationality because of the exception provided in § 1152(a)(1)(B). Section 1152(a)(1)(B) provides, “[n]othing in [§ 1152(a)(1)(A)] shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” However, this provision governs the Secretary of State’s manner and place for processing applications, not the President’s asserted ability to deny immigrant visas on the basis of nationality.

This reasoning, however, reads the president’s authority to bar entry out of existence if based on country of origin, even if to prevent detriment to the U.S. If that’s what Congress wanted, Congress could have written that. But Congress didn’t.

So the entirety of this decision is not better than the prior decisions by other courts. All of them, for varying reasons, have stripped the executive branch of its constitutional and statutory authority to make national security decisions to bar entry into the country.


9th Circuit Opinion Upholding Travel Order Injunction – June 12 2017 by Legal Insurrection on Scribd


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Gee what a surprise.

These cases may be the SCOTUS’ last clear chance to uphold the rule of law.

Bucky Barkingham | June 12, 2017 at 2:33 pm

Assuming that SCOTUS upholds Trump the LibDem AG & judicial activism will continue to hamper Trump’s agenda. If SCOTUS fails to support Trump then we will know that the Constitution and the Rule of Law no longer apply in this country.

pablo panadero | June 12, 2017 at 2:54 pm

Maybe Trump can have some elective surgery done where he goes under anesthesia for 10 minutes. During those 10 minutes the 25th amendment is invoked and Penske becomes President, and signs the EO. Since it wasn’t signed by Trump, all the campaign rhetoric argument is invalid.

It would appear under their reading of 1152(a)(1)(A) that *no* travel ban against any country at all could be considered legitimate, no matter what circumstances exist.

    (stupid preview/submit button confusion)

    Anyway, would a good reading of the 9th circus… um, circuit opinion be that they are attempting to distance themselves from the incorrect concept that campaign statements should be considered when ruling on the executive order, while laying out some plausible sounding fluff for any of the SCOTUS justices who are frantic to uphold the injunction but don’t have any good footing to do so?

    This way they can strike down the obviously incorrect judicial rulings (that coincidentally brush up against SCOTUS previous decisions the other way), while still finding some small spit of sand to build their fragile objection on.

Shocked, just shocked.

We are in a war. Pick your side.

    notamemberofanyorganizedpolicital in reply to Barry. | June 12, 2017 at 3:46 pm

    True true.

    And this is just a small skirmish – not even a battle….

No surprise here.

The jurists of the 9th Circuit are not idiots. At least not all of them are. That court realizes that to base a decision on election campaign rhetoric is a surefire loser and, more importantly, would make it look idiotic and purely partisan. So, they are trying to make a case based upon federal law. However, they are really stretching some of their arguments.

All of that being said, the easiest way to tell that this decision is largely legal BS is the fact that it took 86 pages to justify the court’s decision.

    heyjoojoo in reply to Mac45. | June 12, 2017 at 4:01 pm

    so the country is under the control of leftist judges – even when the president is the one applying the rule.

    That is beyond scary. we are screwed. the fact that these leftist activists have been able to go this far, for so long is surprising. So that means that nothing the president wants will go through if the leftist judges don’t agree.

    Gremlin1974 in reply to Mac45. | June 12, 2017 at 7:22 pm

    “All of that being said, the easiest way to tell that this decision is largely legal BS is the fact that it took 86 pages to justify the court’s decision.”

    LOL, I love it and it’s even funnier because it is so true!

I was surprised to see the mention of Congress at all. It’s a major concession. The previous judicial rulings didn’t seem to care whatsoever whether the President or Congress made these assertions; rather, it viewed them as unconstitutional, therefore Congress would fare no better.

The sop to Congress seems to be a mad scramble for a convenient excuse at this point.

A lot of people DO NOT UNDERSTAND that this is not a difference of opinion, this is out and out WAR!
The left has only 1 agenda and that is the “FUNDAMENTAL TRANSFORMATION” of the United States !

    Barry in reply to Lewfarge. | June 13, 2017 at 6:38 pm

    “The left has only 1 agenda…”

    Their main supplier of “munitions” are people that claim they are conservatives.

inspectorudy | June 12, 2017 at 4:47 pm

The SCOTUS has to step in and stop this nonsense or as a nation of laws, we are doomed. If activist judges have their way then the three legs of our Constitution are lost. The courts are treating an executive order like a request for their approval. Then when they explain their dissent it turns out to be not based on the Constitution or the laws, as written, but on their “Feelings”. Of all the damage obama did to our nation, the most enduring will be the liberal lightweights he appointed to the federal bench.

Gould – clinton appointee
hawkins – clinton appointee
Paez – clinton appointee

Conservative0317 | June 12, 2017 at 7:23 pm

I wonder if these elites in their protected ivory towers would feel the same way after terrorists that came from these countries wiped out their family? Or would ruling the same way be the ultimate virtue signaling?

Does anyone think that Trump’s EO will survive?

So, the Court would have invited immigration form socialist Germany without additional scrutiny?

From imperial Japan?

From communist China?

From dictatorial Zimbabwe?

Does the Court advise judgment of people by the “color of their skin” (i.e. [class] diversity), rather than the “content of their character” (e.g. principled alignment)?