Ninth Circuit maintains injunction against Trump's travel ban.

The 9th Circuit Just Gave the Supreme Court a New Tool to Block Trump’s Travel Ban

The 9th Circuit Just Gave the Supreme Court a New Tool to Block Trump’s Travel Ban

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June 12 2017 2:56 PM

The 9th Circuit Just Gave the Supreme Court a New Tool to Block Trump’s Travel Ban

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Donald Trump

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On Monday, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously upheld a district court’s injunction against President Donald Trump’s second travel ban. In March, U.S. District Judge Derrick Watson blocked two key portions of the executive order, the first suspending the entry of individuals from six Muslim-majority countries and the second suspending the refugee program, then halving the number of refugees allowed in the country. Watson enjoined the order on constitutional grounds, ruling it violated the First Amendment’s Establishment Clause by disfavoring Islam. The 9th Circuit, however, has now blocked the ban on statutory grounds, holding that Trump “exceeded the scope of the authority delegated to him by Congress.”

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

This alternative reasoning does not change the outcome of the case, but it does give the Supreme Court a narrower basis on which to rule if the justices decide to weigh in. The statutory argument is straightforward. Under the Constitution, Congress has the authority to promulgate immigration law, but it can delegate some of that power to the president. The Immigration and Nationality Act does exactly that, allowing the president to suspend a class of aliens from entering the country if he determines they would be detrimental to the United States’ interests. Trump therefore insists that the INA empowers him to exclude all refugees in addition to citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen.

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The 9th Circuit noted a problem with this logic: The INA requires that the President “find”—not speculate or hypothesize, but rationally determine—that a certain class of aliens poses a threat. “This section,” the court explained, “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.” If the president did not “meet [this] essential precondition to exercising his delegated authority,” then his order was unlawful.

The court examined a great deal of evidence to determine whether Trump had, indeed, satisfied the INA’s requirements. It easily concluded that he had not.

The order, the court wrote, “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.” Nor did it “reveal any threat or harm to warrant suspension” of, or dramatic cuts to, the refugee program: The order’s vague language about “national security” is too nebulous and speculative to qualify as a legitimate finding. Trump, the court wrote, had not demonstrated a “link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.” Instead, he’d simply blacklisted six countries on the basis of dubious “security concerns”—an illegal shortcut.

Two other provisions of the INA stand in the way of Trump’s second travel ban. The first bars the government from discriminating against immigrants on the basis of nationality. This rule, the 9th Circuit held, clearly prohibits the president from excluding an entire class of immigrants because of their national origin. The second allows the president to set the number of annual refugee admissions for each fiscal year. For 2017, President Barack Obama had set the number at 110,000; Trump’s travel ban attempted to lower it to 50,000. But, the court found, once one president sets that number, it cannot be decreased mid-year—the  INA permits no such interim meddling.

Due to these statutory defects, the court affirmed nearly all of Watson’s injunction. Critically, though, it reversed a portion of Watson’s order that arguably prevented the government from reviewing and improving its vetting procedures. (The Justice Department claimed that the order had halted any revision process by requiring its lawyers to put their “pens down.”) In doing so, the court made clear that the Trump administration may enhance those procedures while litigation over the ban continues.

The 9th Circuit’s opinion—which was issued per curiam, and is therefore unsigned—contains the most comprehensive judicial analysis yet of the second travel ban’s statutory infirmities. It provides an inviting alternative for any judge uncomfortable with the order’s scope but unwilling to call the president an anti-Muslim bigot. And, unlike the Fourth U.S. Circuit Court of Appeals’ dramatic travel ban ruling, it avoids big constitutional questions entirely, allowing the court to pass on undertaking an investigation into Trump’s anti-Muslim statements. (The decision does cite one recent Trump tweet to confirm that the president views countries themselves as inherently dangerous, “rather than the 180 million individual nationals of those countries.”)

In other words, the 9th Circuit found a way to block the executive order without calling the president a prejudiced liar or invoking contested claims of religious discrimination. It offers the Supreme Court a tool to stop the travel ban on the grounds of executive overreach rather than unconstitutional animus. Perhaps the justices have already made up their minds on the legality of Trump’s order. But if any were still undecided, Monday’s decision could help break the tie.