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