Another federal appeals court has rejected President Donald Trump’s travel ban on Monday, June 12, 2017, ruling that the executive order did not provide a valid reason for suspending the entry of people from six Muslim majority nations. The unanimous decision was handed down by a three-judge panel of the Ninth US Circuit Court of Appeals in San Francisco.
This latest legal defeat the policy comes less than three weeks after the Fourth US Circuit Court of Appeals ruled against the revised order on the grounds that it violated the First Amendment of the US Constitution. The Ninth Circuit Court, however, based its decision on immigration law rather than the Constitution.
“The order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the Ninth Circuit’s decision said. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”
In explaining their ruling, Judges Michael Hawkins, Ronald Gould, and Richard Paez asserted that the ban violated immigration law because it called for discrimination based on nationality in issuing visas. The administration also failed to demonstrate that entry from the six designated countries would be detrimental to the United States’ interests.
The executive order, the judges said, does not link the nationality of people from the countries in question — Iran, Libya, Somalia, Sudan, Syria, and Yemen — to their “propensity to commit terrorism.” Furthermore, since the court found that the order was in conflict with immigration law, they said they did not need to consider whether the ban was in violation of the US Constitution. In reaching its decision, the court cited a tweet by President Trump after the recent act of terrorism in London that explicitly embraced the fact that his executive order was a travel ban, undercutting arguments made by administration attorneys seeking to soften the intent and operation of the ban. Some have argued that the President’s tweets should not be considered by the courts in determining the legality of the travel ban, the judges relied on the White House Press Secretary’s statement that his tweets should be “considered official statements by the President of the United States.”
While past rulings on the ban have called into question its constitutionality, the Ninth Circuit’s decision, based on statutory law alone, raises the critical issue of executive power and whether President Trump understands (or wishes to honour) its limits. The Trump administration has appealed the ruling to the Supreme Court. If the Supreme Court decides to hear the appeal, the majority conservative court will have to determine the constitutionality of the order in light of the President’s tweets on the travel ban and, likely, Trump’s election rhetoric about Muslim immigrants.
Although lower courts have blocked the ban thus far, the administration is confident that the Supreme Court will rule in its favour. “Frankly, I think any lawyer worth their salt 100 percent agrees that the President’s fully within his rights and his responsibilities to do what is necessary to protect the country,” said White House Press Secretary Sean Spicer. While a majority of the 4th and 9th Circuit appeals court’s judges were nominated by Democratic presidents, the majority of Supreme Court justices are conservatives, who have historically been supportive of executive authority in foreign affairs.
Proponents of the ban claim that it is necessary for national security. However, according to the Washington Post, a report issued by the Department of Homeland Security in February found that citizenship is an “unreliable” threat indicator and that individuals from the designated countries have rarely been implicated in US-based terrorism in the past. Furthermore, the ban, if implemented, would prevent the entry of thousands of Syrians from entering the country, many of whom urgently need medical treatment and refuge from terrorism overseas. Families currently separated across continents and without visas in the designated Muslim majority countries fear what will happen if the lower courts’ rulings are overturned.
The administration believes that President Trump’s revisions to the original executive order, which offers exemptions to certain foreign nationals and eliminates Iraq (a US ally) from the list of designated countries, will make it easier for his administration to win in court. Yet the Supreme Court, if it hears the case, will now likely feel compelled to consider the reasoning of both the Fourth and Ninth Circuit courts. In order to stand a chance, the travel ban must be proven legal on statutory and constitutional grounds, which means that the Trump administration’s confidence may be unfounded.
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