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Another Federal Appeals Court Says Trump's Travel Ban Should Remain On Hold

Jun 12, 2017
Originally published on June 12, 2017 5:52 pm

Updated at 6:20 p.m. ET

The 9th U.S. Circuit Court of Appeals has ruled that a preliminary injunction blocking President Trump's travel ban should remain in effect, at least for now. It's the second appeals court decision in less than a month to maintain a nationwide stay on the ban.

Monday's decision centers on an executive order to temporarily suspend the admission of refugees to the U.S. and limit travel from some majority-Muslim countries. It's Trump's second attempt at such a policy. The first executive order was issued in late January, with no advance notice, causing chaos for some travelers and prompting swift legal challenges.

After that order was blocked by courts, the White House issued a second executive order, omitting references to religion and specifically exempting green card holders. That one was challenged by lawsuits and blocked by injunctions before it ever went into effect.

There are multiple cases pending against the revised order. The one before the Seattle-based 9th Circuit was the case of Hawaii v. Trump — the first lawsuit filed by a state against the revised travel ban. A three-judge panel heard oral arguments on that case last month.

The 9th Circuit sided with the state of Hawaii in deciding that the ban should stay on hold as the cases against it move through the courts. The judges were not directly ruling on the merits of the travel ban itself; however, to evaluate whether the injunction was appropriate, they had to weigh the probable impact of the travel ban and the likelihood that a case against it would succeed.

They concluded the travel ban would probably cause irreparable harm if it went into effect and that the revised executive order "does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality."

"National security is not a 'talismanic incantation' that, once invoked, can support any and all exercise of executive power," the judges wrote.

It's the second such decision in less than a month. The Richmond, Va.-based 4th U.S. Circuit Court of Appeals recently upheld another nationwide injunction against the president's travel ban.

Both courts were broadly skeptical of the government's argument that the president — who has wide latitude on issues of immigration — was well within his rights to issue the executive order.

The president has "broad power," the 4th Circuit ruled, "but that power is not absolute." The 9th Circuit took a similar stance on Monday, writing: "Immigration, even for the President, is not a one-person show."

But the appellate courts' opinions were notably different in focus.

A 13-judge panel of the 4th Circuit extensively considered issues of religious freedom, drawing heavily on Trump's public statements calling for a "Muslim ban."

The majority of those judges found that Trump's executive order "drips with religious intolerance" and that "the reasonable observer would likely conclude that EO-2's primary purpose is to exclude persons from the United States on the basis of their religious beliefs." As a result, they found the order to be probably unconstitutional.

The three judges of the 9th Circuit, writing unanimously, barely discussed religion at all. In a footnote, they said they "need not address" claims of religious discrimination to rule on the injunction. And unlike the 4th Circuit, they did not consider whether the order is constitutional.

Instead, they focused on federal law. They ruled the order likely violates the Immigration and Nationality Act by discriminating on the basis of a person's country of origin.

Any exception to the INA would need to be justified based on national interest, the judges write — and they were not convinced by Trump's argument that the order ensures national security.

"The Order does not tie these nationals in any way to terrorist organizations within the six designated countries," they wrote. "It does not provide any link between an individual's nationality and their propensity to commit terrorism or their inherent dangerousness."

The 9th Circuit invoked the case of Korematsu v. United States, which upheld the internment of Japanese-Americans during World War II, to highlight the danger of classification by nationality.

That case had come up in oral arguments, as NPR reported at the time:

"Judge Richard Paez asked [acting Solicitor General Jeffrey] Wall what separates Trump's executive order from the World War II-era mass imprisonment of Japanese-Americans, which was also initiated by an executive order from President Roosevelt and justified on national security grounds.

"That executive order was upheld by the U.S. Supreme Court at the time. It's now nearly universally recognized as being unconstitutional and profoundly unjust, born of 'race prejudice, war hysteria and a failure of political leadership,' as a congressional apology put it."

The 9th Circuit decision has another key difference from the 4th Circuit ruling: It also denies the White House's request to reinstate a temporary suspension of the refugee program, as well as a reduction in the number of refugees admitted in general.

Among other things, the judges concluded that the president didn't adequately consult with Congress before reducing the number of refugees who could be admitted to the U.S.

Ultimately, the appellate court said the central provisions of the revised executive order — regarding both travelers and refugees — should remain on pause.

However, the 9th Circuit did rule that the preliminary injunction, as originally imposed by the district court of Hawaii, was too broad. One portion of the "travel ban" executive order — which does not limit travel or immigration and calls for the government to carry out an internal review of the refugee admission process — should be allowed to go into effect.

At a news conference Monday, White House press secretary Sean Spicer said the travel ban is lawful and is a necessary tool for fighting terrorism. He also said the administration — which has already asked the U.S. Supreme Court to intervene and reinstate the revised travel ban — looks forward to hearing from the high court on the issue.

Attorney General Jeff Sessions issued a statement later on Monday.

"The Executive Branch is entrusted with the responsibility to keep the country safe under Article II of the Constitution," he said. "Unfortunately, this injunction prevents the President from fully carrying out his Article II duties and has a chilling effect on security operations overall."

Sessions called the threat of terrorism "immediate and real," saying Trump knows "there are active plots to infiltrate the U.S. immigration system — just as occurred prior to 9/11." The attorney general said the Department of Justice will continue to "seek further review by the Supreme Court."

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