9th Circuit Upholds Injunction On Trump’s Second Travel Ban

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Kevin Daley Supreme Court correspondent
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The 9th U.S. Circuit Court of Appeals upheld an injunction barring enforcement of key provisions of President Donald Trump’s second executive order on refugees and migrants Monday, finding the president exceeded his lawful authority in issuing the directive.

The 9th Circuit’s decision comes as the Supreme Court reviews a petition submitted by the Department of Justice to review a separate ruling from the 4th Circuit, which also barred enforcement of the order.

The ruling keeps two provisions of the order from taking effect: the first suspends migration from six countries with high instances of terror, and the second reduces the number of refugees the U.S. will accept from 110,000 to 50,000.

“[I]mmigration, even for the President, is not a one-person show,” the court wrote. “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.”

The 9th Circuit’s ruling is largely restricted to a textual analysis of the relevant immigration law, unlike other federal courts who have concentrated their inquiry on constitutional arguments. The court argues that a careful reading of the Immigration and Nationality Act — the law the administration cites to justify the legality of the travel ban — reveals that the administration has not shown that the order is lawful.

The court explains:

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. 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.

The court discusses at some length the various ways in which the administration failed to show that migrant and refugee entry would be detrimental to the national interest; among other claims, the court says the order does not show that nationality alone makes one at heightened security risk, or that current vetting procedures are inadequate for national security.


The court also points out that the order is, in some ways, under inclusive, as it would not hinder a terrorist who was radicalized in one of the six countries named in the order, but was born some place else, from entering the United States.

Though the ruling comes as the Supreme Court is grappling with the travel ban litigation arising from the 4th Circuit, it is still a major development. The 4th Circuit’s ruling found that Trump’s order creates the perception that the administration’s purpose is to pursue a policy that disparages Muslims, a violation of the Constitution’s ban on establishing religion.

This ruling put the Supreme Court in a difficult position. The justices will generally avoid weighing in on constitutional questions when it can, — especially where those questions are novel or controversial — and are loath to take up ongoing political controversies. The 9th Circuit’s ruling provides a basis for the high court to leave the travel ban on hold without engaging the contentious constitutional issues the 4th Circuit raises.

This is breaking news. Check back for updates as more information becomes available. 

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