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9th Circuit rules against Trump Travel Order No. 3

9th Circuit rules against Trump Travel Order No. 3

But stays its ruling pending Supreme Court review.

The U.S. Court of Appeals for the Ninth Circuit has ruled against President Trump’s Third Travel Order on virtually the same grounds it blocked a March iteration of the order.

A copy of the Opinion (pdf.) is embedded at the bottom of this post.

Recycling their (vacated) opinion from June, the same three Clinton-appointed judges, Michael D. Hawkins, Ronald M. Gould and Richard A. Paez, again held—unanimously—that the restrictions exceed the president’s statutory authority under the Immigration and Nationality Act. In doing so, they mostly upheld an injunction issued by the same Hawaii judge who blocked the March executive order.

This Third Travel Order, unveiled as a presidential proclamation in September, prohibits entry of nationals—to varying degrees—from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Before it went into effect, district judges in Hawaii and Maryland blocked enforcement.

Crucially, this ruling has no immediate practical effect.

As Legal Insurrection reported on December 4, the Supreme Court has stayed the Hawaii and Maryland injunctions until the Justices either refuse to hear an appeal or rule against the government on the merits. The panel itself noted, “In light of the Supreme Court’s order staying this injunction pending ‘disposition of the Government’s petition for a writ of certiorari, if such writ is sought,’ we stay our decision today pending Supreme Court review.” As such, the travel order will, for the time being, continue to be enforced with respect to all nationals of the targeted countries.

Summarizing its argument, the panel wrote:

We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has embodied in the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: Before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.

This argument is difficult to square with the actual statutory language. For example, Congress did not “attach” a “critical prerequisite to [the president’s] suspension authority” by requiring him to make a “legally sufficient finding that the entry of the specified individuals would be ‘detrimental to the interests of the United States.'” The text of the statute says that

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Nada about a “legally sufficient” finding. It’s not even clear what a “legally sufficient” finding would be. The Proclamation explains the national security threat posed by each individual country.

The judges also obliquely likened Trump’s travel orders to FDR’s internment of Japanese-Americans. “In assessing the public interest, we are reminded of Justice Murphy’s wise words: ‘All residents of this nation are kin in some way by blood or culture to a foreign land.’ It cannot be in the public interest that a portion of this country be made to live in fear,” they wrote quoting a dissenting opinion from Korematsu. It is unclear why “a portion of this country” would “live in fear” if immigration from six countries in the Middle East were paused. It’s also unclear what that has to do with the president’s statutory authority under the INA.

We’re now just back to where we started. The government will appeal to the Supreme Court, which will likely agree to hear the case.

The Fourth Circuit is expected to issue a ruling soon on the Travel Order.


Hawaii v. Trump – 9th Circuit Decision Affirming Injunction 12-22-2017 by Legal Insurrection on Scribd


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Let the beatings commence.

Reminds me of Albert Einstein’s quote about repeating an action and expecting a different result.

    Milhouse in reply to 94Corvette. | December 24, 2017 at 6:14 am

    Um, how so? What result do you imagine they got the first time, and should expect this time? All that happened the first time was that their order got stayed, so this time they stayed it themselves. What more?

Send each judge a DVD of “Judgement at Nuremberg” and ask if when they look in the mirror they see any likeness to Burt Lancaster’s character.

Someone needs to do an annual study of how often appellate court judges are reversed. Congress should pass a law stating that any judge whose rate of reversal is in the top 10 or 20% of all judges is discharged from office. That would put a stop this shiat.

    puhiawa in reply to Wisewerds. | December 22, 2017 at 11:32 pm

    You would never know their hero judge just had to resign for being a sexual pervert.

      You really, REALLY don’t want to go there. The loss of Justice Alex Kozinski makes the 9th Circus MORE Progressive-Leninist, not less. Kozinski was a sound, reasonably principled Libertarian leaning Judge.

      TempeJeff in reply to puhiawa. | December 23, 2017 at 10:24 pm

      I know, right? It’s almost toooo conveeenient. Liberals have no problem raping women as long as, they support Abortion; I wonder why? Maybe, Libs don’t want to deal with consequences from their actions? One honest Judge is too much for the 9th. Slander to the rescue! Maybe the old gal from Alabama can find something in her Yearbook signed by Judge Kosinski? I am sure, Gloria and Daughter are on the Case! LOL

This is a glaring example of judicial arrogance. The SCOTUS has reversed the 9th twice so far. So, any reasonably intelligent juror would would simply refer any appeal to the court of original jurisdiction, the SCOTUS, which has already said that it will likely take the case. All that the 9th has done here is to make sure that the SCOTUS will hear the case and will not be favorably disposed to the decision rendered by the 9th. For all intents and purposes, the 9th has guaranteed a reversal.

    Politicalization of a court is corruption.

    The Ninth Circuit is a corrupt joke: they’re about qualified to interpret constitutional law as that idiot, Traitor Barack.

      There is little reason Trump should abide by this ruling, or any other ruling emanating from joke court. If you want to make a mockery of our Constitution, fine, but nobody should take you seriously.

        Start picking and choosing which laws to enforce or not, and you have chaos – witness the 8 years of the lawlessness of that piece of garbage obama, hillary klinton, comey, mueller and the rest of the low-lifes who worked so hard to try and destroy our way of life.

          isn’t that “prosecutorial discretion”?

          This case involves a disagreement between a state, Hawaii, and the government of the United States. Under the Constitution, the court of original jurisdiction in any case between the US Government and any member state of the Union, is the SCOTUS; not some district court or district court of appeals. The SCOTUS is supposed to hear all cases involving a dispute between the US government and any state. So, technically, the decisions of the lower courts are not binding upon the POTUS, in this case, and he could ignore them if he chose.

          Mac, wrong. “The Supreme Court shall have original but not exclusive jurisdiction of: […] All controversies between the United States and a State.” Cases between the US and a state almost always start in District Court.

          Here is the wording of Art. 3 Sec 2 of the US Constitution:

          “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

          Not that the appellate jurisdiction of the SCOTUS is limited to cases OTHER than those in the first sentence. Those mentioned in the first sentence, including any case in which a State is a party, the SCOTUS has original jurisdiction, but not appellate jurisdiction.

          Again, wrong. SCOTUS always has appellate jurisdiction. In the cases not mentioned it has only appellate jurisdiction. In the cases mentioned it has original jurisdiction, but in most of them Congress has also given original jurisdiction to the lower courts. In cases between two or more states Congress has explicitly said that SCOTUS has not only original but also exclusive jurisdiction.

    Gremlin1974 in reply to Mac45. | December 23, 2017 at 12:23 am

    Scotus has done pretty much everything except send them a note that says; “Freaking quit!”, lol.

    Milhouse in reply to Mac45. | December 24, 2017 at 6:18 am

    The SCOTUS has reversed the 9th twice so fa

    No, it has not. Stop lying. SCOTUS has said nothing for or against the first two versions of this ruling. It merely stayed them, so this time the 9th stayed itself. That is all. Whatever the 9th thought the first two times, it still thinks now, because it has had no reason to change its mind.

      Actually, the SCOTUS stayed the actions of the 9th twice. Such a stay, in this case, amounts to a reversal. When a superior court tells a lower court that its action is improper and stays that action, this is the same as reversing that court’s decision and action.

      There was no formal reversal because the SCOTUS whimped out and ducked its responsibilities in the previous case.

        Milhouse in reply to Mac45. | December 24, 2017 at 12:33 pm

        A stay does not amount to a reversal. A stay is just a stay — SCOTUS said “we want to look at this, and until we do so the government can do what it wants”. So this time the 9th took that into account, and stayed its order. SCOTUS has not expressed any opinion on the law, so the 9th had every right to apply the law as it understands it. If SCOTUS ends up disagreeing it will say so.

The 9th district must be made up of magicians, because they can make law apear out of thin air!

It would be refreshing if the SCOTUS were to issue a reversal, as well as a reprimand or other negative consequence censuring the 9th Circuit, as well as all other federal judges and circuits that refuse to accept the rulings and statements of the SCOTUS.

Can they be impeached, or even removed or fired by the SCOTUS, or by Congress, if they continue to defy SCOTUS? I sure hope so.

    Gremlin1974 in reply to DINORightMarie. | December 23, 2017 at 12:21 am

    They have to be impeached by the house and removed by the senate, just like presidential impeachment, if my High School Civic’s isn’t failing me right now.

    SCOTUS may or may not reverse, but there’s nothing to discipline them for. They’re giving the law as they understand it, which is exactly what they’re supposed to do.

      Barry in reply to Milhouse. | December 24, 2017 at 9:36 am

      “They’re giving the law as they understand it…”

      Entirely devoid of the constitution. They’re “understanding” is they will make the law as they see fit, in service to the communist gods. Whatever fits best at the time.

        Milhouse in reply to Barry. | December 24, 2017 at 12:34 pm

        BS. Their understanding of the statute is plausible, and we shall see how many SCOTUS justices agree with it. But until SCOTUS says it’s wrong, the 9th is entitled to apply it.

These aren’t real judges, are they?

Translation of the 9th circus decision.

(Wahhhhhhhhh, stampy feet!)

If it hasn’t already become abundantly clear this court needs to be broken up and reallocated.

“It cannot be in the public interest that a portion of this country be made to live in fear”

Since the order doesn’t apply to people legally in this country, what would they fear?

“The judges also obliquely likened Trump’s travel orders to FDR’s internment of Japanese-Americans. “

LOL. Oh yes, the U.S. government preventing foreigners from terror-prone states (where the government can’t or won’t confirm their identity) from getting visas to immigrate to the U.S. is EXACTLY the same as American citizens of Japanese heritage being imprisoned by the U.S. government because of their ethnic identity.

The 9th Circus Court of Repeals will get to add another notch in its belt of overturned rulings. When will these backside clowns learn to actually read the Constitution before going out of their way to rule with their political agendas? Politicians are allowed to interweave politics and law. Judges are restricted to the law, but the 9th never learns that lesson.

What’s the point of making a decision which you immediately stay?

The law says the President may, at his discretion, bar “certain types or classes of people, or specific individuals, from entering the country. It is an ass, or deeply politically flawed jurist, that reads the law and then announces the law does not say that.

    Milhouse in reply to Boots. | December 24, 2017 at 6:38 am

    Stop lying. It doesn’t say he may do so at his discretion, it says he may do so only if he finds certain things to be true. This panel is saying that finding can’t just be the president’s say-so, it has to be legally sufficient. (Of course this principal can come back to bite them, because if that’s the standard for presidential and congressional findings then it must also be the standard for judicial findings, which may also be dismissed if they are legally insufficient.)

      Yes. It does say the President may do this. Period. No reason is required. So reads the law. If you don’t like the law. Don’t shop the issue to a far-left whacko panel of judges more than willing to legislate (illegally) from the bench to say the law says something it does not. If you don’t like the law, change it thru the legislative process. Not judicially. Grow up and grow a pair.

        Milhouse in reply to Boots. | December 24, 2017 at 12:39 pm

        You are lying. The text of the law is quoted in the post, and it says exactly what this panel has says it does, and not what you claim. “Whenever the President finds […] he may […].” That is the exact opposite of what you claim. He may not do so at his discretion, but only if he honestly made the finding.

regulus arcturus | December 23, 2017 at 3:08 pm

What are the disciplinary actions the SC may take here, if any?

That needs to happen now.

This court is out of control.

    Discipline for what? They’re doing their job, deciding what the law is. If the Supreme Court ends up disagreeing, it will tell them. So far it has not.

    If the president believed the whole matter to be outside the judicial branch’s purview then he shouldn’t have gone to court in the first place, but have simply enforced his order and alerted the Supreme Court to keep its inferior courts in order. Instead he acknowledged that this is something the judicial branch can rule on, so now he has to accept its decision, which will come once the SCOTUS has heard the appeal. In the meantime the decision is stayed, so he can keep enforcing his order.

      Boots in reply to Milhouse. | December 24, 2017 at 9:51 am

      Judges do NOT determine law, except in rare cases. Nationally, law is “determined” by the collaborative process of the legislature and executive branches. The judicial branch was created to decide situations where plaintiffs disagree on whether the law was complied with. Due to Marbury v. Madison, a disastrous ruling, SCOTUS was empowered with “judicial review” powers, something NEVER intended for the court.

        Milhouse in reply to Boots. | December 24, 2017 at 12:51 pm

        Good lord. In what universe is that load of garbage true? In this one, the role of judges is and has always been to say what the law is. That’s what they’re for. Whenever there is a dispute as to what the law is, a judge decides. Determining whether the agreed-upon law has been complied with is not a judicial function at all; it’s either a fact-finding function, which belongs to juries, or a purely ministerial function, which belongs to the executive.

          Boots in reply to Milhouse. | December 24, 2017 at 2:47 pm

          This universe. The one in which you live. The one in which you suffer severe reality vertigo.

          Milhouse in reply to Milhouse. | December 24, 2017 at 5:39 pm

          So you’re just another crackpot. On a legal blog, no less. Lord help us all.

          Milhouse in reply to Milhouse. | December 24, 2017 at 5:50 pm

          “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”

          “This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.”

          “The courts must declare the sense of the law.”

Ar these the liberal that receive their instruction (e.g. selective-child, color diversity, political congruence, elective regimes change, anti-nativism) from the twilight fringe?

Thanks for making my point, professor. Nobody cuts and pastes like a moron progressive. Take the rest of the day off. You must be tired of the intellectual challenges.

    Milhouse in reply to Boots. | December 24, 2017 at 8:05 pm

    You’ve got no answer, and don’t even recognize the source. You made a crackpot indefensible statement, contrary to every authority that exists, and you pretend it’s the default position. On a legal blog, no less. Go to Hell.