Ilya Somin, Washington Post, June 12, 2017
Earlier today, a panel of the US Court of Appeals for the Ninth Circuit unanimously upheld the main part of the trial court injunction against President Trump’s revised travel ban executive order, forbidding entry into the United States by nationals of six Muslim-majority nations for a period of 90 days. The text of the opinion is available here.
Unlike the earlier Fourth Circuit and trial court rulings against the ban, which invalidated it on the grounds that Trump engaged in unconstitutional religious discrimination against Muslims, this ruling concludes that the order is invalid for the simple reason that Trump lacked statutory authorization from Congress, for his actions:
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 President to follow a specific process when setting the annual cap on the admission of refugees.
Like the earlier rulings against the revised travel ban, this one undercuts many commentators’ initial predictions that the new order would not be vulnerable to legal challenge in the way that the original was. Numerous federal judges have now ruled that the new order is unconstitutional, lacks statutory authorization, or both.
The administration’s only chance to reinstate the travel ban is now to get the Supreme Court to overrule the Fourth and Ninth Circuits on both statutory and constitutional grounds.